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https://www.courtlistener.com/api/rest/v3/opinions/1525699/ | 687 S.W.2d 777 (1985)
FRUEHAUF CORPORATION and Texas Hauling Contractors, Inc., Appellants,
v.
Guadalupe ORTEGA, Appellee.
No. 13-83-110-CV.
Court of Appeals of Texas, Corpus Christi.
February 14, 1985.
*779 B. Buck Pettitt, Jones, Lewis & Pettitt, McAllen, Kenneth D. Kuykendall, Royston, Rayzor, Vickery & Williams, Houston, for appellants.
Joseph Prestia Pena, McDonald, Prestia & Ibanez, Edinburg, Russell McMains, Edwards & Perry, Corpus Christi, Paul Q. O'Leary, O'Leary, Sanchez & Benton, Brownsville, for appellee.
En Banc.
OPINION
PER CURIAM.
Appellee brought this personal injury action because of electrical burns he received in the course of his employment. Several parties were named as defendants at trial, but only Texas Hauling Contractors, Inc. (Texas Hauling) and Fruehauf Corporation (Fruehauf) appealed from the recovery granted to appellee in the final judgment.
Appellee was an employee of Virgil T. Walker Construction Co., Inc. (Walker Construction), which had been hired by Heldt Brothers Trucking Corporation (Heldt Trucking) to improve a driveway. Walker Construction then hired Texas Hauling to haul fill material for the driveway. Texas Hauling sent a truck with a dump-trailer to the dump site. The trailer was manufactured by Fruehauf. The truck was owned by Mr. Reyes Nino and driven by Mr. Jose Mendoza. When Mendoza arrived at the site, the dumping was directed by appellee. When the dump-trailer was raised, it apparently moved too close to overhead power lines and became charged with electricity. After the trailer was empty, appellee approached the truck, came into contact with the metal portion of the truck and suffered severe electrical burns.
Appellee sued Texas Hauling, Fruehauf, Mendoza and Magic Valley Electric Cooperative, Inc. (Electric Company); other actions brought Heldt Trucking and its individual owners into the suit. The Electric Company and Heldt Trucking and its individual owners settled with appellee and were ultimately dismissed from the action. The negligence of Heldt Trucking was submitted to the jury, but not that of the Electric Company. The jury assessed responsibility for appellee's injuries as follows:
PARTY % NEGLIGENT
Mendoza 11
Texas Hauling 15
Fruehauf 53
Heldt Trucking 18
Appellee 3
Appellee was awarded $925,000 in total damages, of which $608,585.20 was assessed jointly and severally against Mendoza, Texas Hauling and Fruehauf. Appellant does not challenge the determination of the percentage of negligence. Fruehauf settled with appellee after submission of the appeal, so only the points of error brought by Texas Hauling will be considered.
In answers to the first two special issues submitted, the jury found, respectively, that certain delineated negligent conduct of Mendoza was a proximate cause of appellee's injuries and that Mendoza was an employee of appellant Texas Hauling. In its first seven points of error, appellant challenges Special Issue Three. It was submitted to the jury in the following form:
SPECIAL ISSUE NO. THREE
Do you find from a preponderance of the evidence that the Defendant, TEXAS HAULING CONTRACTORS, committed *780 any negligent act or omission which was a proximate cause of the occurrence in question?
In determining whether the Defendant, TEXAS HAULING CONTRACTORS, was negligent, you will consider only the following acts or omissions, if any;
A. failing to warn GUADALUPE ORTEGA of the overhead wires;
B. failing to warn workers of the overhead wires;
C. failing to notify Magic Valley Electric Cooperative of their work in the area of overhead wires as per Vernon's Ann. Civ.St. Article 1436-C;
D. In dumping, or causing to be dumped, caliche from the truck trailer in question when it was possible for some part of such trailer to be brought within 6 feet of the high voltage overhead line during such dumping;
E. In operating or moving, or causing the operation or moving of, the truck-trailer, or any part thereof, within six (6) feet of the overhead high voltage lines;
F. In operating, or causing to be operated, equipment any part of which was capable of vertical motion on which there was not posted and maintained a warning sign legible at 12 feet placed within the equipment readily visible to its operators when at the controls of such equipment and on the outside of such equipment in such number and location as to be readily visible to persons engaged in the work being performed and when an insulated cage-type guard or protective device had not been installed about the part of such equipment capable of vertical movement;
G. In operating, or causing to be operated, equipment capable of vertical movement within 10 feet of the high voltage overhead line.
ANSWER "YES" OR "NO."
ANSWER YES
In its first point of error, appellant contends that the jury should have been allowed to answer Special Issue Three only if it previously found that Mendoza was not an employee of appellant. Appellant cites the general rule that appellant and appellee cannot be joint tortfeasors when they are in an employer-employee relationship. The judgment found Mendoza and appellant jointly and severally liable without indicating the application of respondeat superior. Compare Marange v. Marshall, 402 S.W.2d 236 (Tex.Civ.App. Corpus Christi 1966, writ ref'd n.r.e.). Appellant does concede that "the trial court correctly disregarded the jury's answer to Special Issue No. 2 ... because a judgment against Jose Mendoza was in effect a judgment against Nino Reyes"; however, appellant argues that the mere erroneous unconditional submission of Special Issue Three "allowed the jury to consider the acts or omissions of Mendoza in Special Issue No. 1 in determining the negligence of Texas Hauling in Special Issue No. 3." Special Issue One was submitted in the following form:
"SPECIAL ISSUE NO. ONE
Do you find from a preponderance of the evidence that the Defendant, JOSE MENDOZA, committed any negligent act or omission which was a proximate cause of the occurrence in question?
In determining whether the Defendant, JOSE MENDOZA, was negligent, you will consider only the following acts or omissions, if any:
(a) Failing to keep a proper lookout for overhead wires;
(b) Failing to warn Plaintiff that he was parked under the electrical wires;
(c) Proceeding to raise the trailer bed when he knew or should have known the danger of contact with overhead wires;
(d) Failing to place a warning sign on the truck and trailer regarding the possibility of overhead wires and its consequences;
(e) In dumping, or causing to be dumped, caliche from the truck-trailer in question when it was possible for some part of such trailer to be brought within 6 *781 feet of the high voltage overhead line during such dumping;
(f) In operating or moving, or causing the operation or moving of, the truck-trailer, or any part thereof, within six (6) feet of the overhead high voltage lines.
(g) In operating, or causing to be operated, equipment any part of which was capable of vertical motion on which there was not posted and maintained a warning sign legible at 12 feet placed within the equipment readily visible to its operators when at the controls of such equipment and on the outside of such equipment in such number and location as to be readily visible to persons engaged in the work being performed and when an insulated cage-type guard or protective device had not been installed about the part of such equipment capable of vertical movement.
(h) In operating, or causing to be operated, equipment capable of vertical movement within 10 feet of the high voltage overhead line.
ANSWER: "YES" OR "NO."
ANSWER: YES
Appellant argues that the similarities between Special Issues One and Three improperly focused attention on Mendoza's conduct instead of on appellant's negligence. Appellant has cited no case authority which supports its asserted narrow reading of Special Issues One and Three, and we disagree with its construction.
There is no doubt that the jury was instructed to consider Mendoza's conduct in Issue One and appellant's conduct in Issue Three. The conduct set out included acts and omissions that could have been engaged in at either the office or the construction site, or both. Mendoza and appellant could properly have been found to have engaged in the same negligent conduct or in separate acts or omissions listed. The jury assigned different percentages of negligence to each party. Overlapping special issues do not necessarily produce reversible error. Under the facts of this case, including appellant's failure to object to the form of Special Issue Three, we find that this case belongs, at least by analogy, in the same class of rules that holds that it is immaterial that there are defects in some submitted special issues when the answers to other special issues will sustain the judgment. City of Lubbock v. Onley, 498 S.W.2d 429 (Tex.Civ.App.Amarillo 1973) writ ref'd n.r.e., Per Curiam 506 S.W.2d 208 (Tex.1973); Hawes v. Central Texas Production Credit Association, 492 S.W.2d 714 (Tex.Civ.App.Austin 1973) aff'd 503 S.W.2d 234 (Tex.1973).
Finally, even if Special Issue Three should have been conditioned on a jury finding that Mendoza was not an employee of appellant, we do not think that the error, in light of the record as a whole, caused a rendition of an improper judgment. As previously stated, appellant itself stated that the trial court properly disregarded the jury answer to Special Issue Two. Appellant's first point of error is overruled.
In its second point of error, appellant contends that paragraphs D, E, F, and G of Special Issue Three should not have been submitted "because there was a wide variance between the pleadings, proof, and limiting instructions in violation of ... Scott v. Atchison, Topeka & Santa Fe Railway Co., 572 S.W.2d 273 (Tex.1978)." Appellant refers us to the language from the Scott decision, which says that "when one or more pleaded acts or omissions are unsupported by evidence and the record contains evidence of other possible negligent acts or omissions which were not pled, failure to limit the broad ultimate fact issue to acts or omissions which were raised by both pleadings and proof violates Rule 277 and is error." However, appellant's trial objection was that "the general charge in the manner of which it is submitted is a direct violation of [Scott] because Issues Number One, Three and subsequent issues clearly demonstrated there is a great variance between the pleadings and the proof in this case, and I suggest a general objection to the issues in general." Although we do not approve of the form of the *782 charge, appellant did not object to this method of submission. Appellant's objection was not specific enough to preserve the error here assigned.
"Variance between pleadings and proof has rarely been the source of harmful error. To be reversible, the variance must be substantial, misleading, constitute surprise and be a prejudicial departure from the pleadings. [Citations omitted].... [A] broad submission of an issue will [not] be reversed simply because one or more acts which contributed to the injury was not particularly pleaded or proved." Brown v. American Transfer and Storage Company, 601 S.W.2d 931 (Tex.1980); Siebenlist v. Harville, 596 S.W.2d 113 (Tex. 1980). Thus, the objections to the charge must be distinct and specific; if there is a variance between the pleadings and proof, the distinct and specific variance or other defect must be stated in the objection, or it is waived under TEX.R.CIV.P. 274. The purpose of this requirement is to allow the trial court an opportunity to then and there redraft the charge if necessary or consider an amendment under Rule 66. Brown at 938. See Burk Royalty Company v. Walls, 616 S.W.2d 911 (Tex.1981); Hersh v. Hendley, 626 S.W.2d 151 (Tex.App.Fort Worth 1981, no writ). Appellant's objection was simply too general to apprise the trial court of any alleged error.
We pause to note that the pleadings in this case present a stark contrast to those in the Scott case; more recent Supreme Court cases have noted that the plaintiff in Scott "Failed to produce any evidence on pleaded acts; he produced an abundance of evidence on six or seven unpleaded acts. [Thus, a] case could hardly be conceived in which a variance could be wider than that found in Scott." See Brown, at 937; Siebenlist, at 114. We hold that, in the case before us, the pleadings did not present such a wide variance so as to constitute reversible error. The pleadings afforded the appellant sufficient notice and opportunity to prepare an adequate defense. Murray v. O & A Express, Inc., 630 S.W.2d 633 (Tex.1982). Appellant's second point of error is overruled.
In its third point of error, appellant notes that, at trial, appellee introduced deposition testimony of Mendoza without designating him an adverse witness under TEX.R.CIV.P. 182. The deposition testimony tended to show that Mendoza had warned appellee about the overhead wires; appellant argues that the trial court later refused to allow appellee to state that he was never warned about the wires, ruling that appellee was bound by the testimony of Mendoza, and appellee could not impeach it. Appellant therefore contends that paragraphs A and B of Special Issue Three should not have been submitted because they were not supported by the evidence.
We first note that previous testimony in the record contradicted Mendoza's testimony that appellee was warned about the overhead lines. Appellee testified before Mendoza and stated that he never spoke to Mendoza before the accident. Appellee repeatedly testified on both direct and cross-examination that he had not seen the power lines and that no one had warned him that the lines were low and that dumping might present problems. Even assuming appellant is correct in contending that appellee could not impeach Mendoza, that ruling will not relate back to contradictory testimony already in evidence. This issue belongs within the rule that it is the exclusive province of the jury to judge the credibility of the witnesses and to determine the weight to be given their testimony. Tenngasco Gas Gathering Company v. Fischer, 653 S.W.2d 469 (Tex.App.Corpus Christi 1983, no writ). See Salazar v. Hill, 551 S.W.2d 518 (Tex.Civ.App.Corpus Christi 1977, writ ref'd n.r.e.). Finally, the determination of whether Mendoza's testimony bound appellee is logically irrelevant to the issue of whether appellant negligently failed to warn appellee or workers of the overhead wires. Appellant's third point of error is overruled.
In its fourth, fifth and sixth points of error, appellant contends that the trial *783 court erred by (a) incorporating TEX.REV. CIV.STAT.ANN. art. 1436c (Vernon 1980) in the charge and (b) submitting paragraphs C through G in Special Issue Three, because there was no evidence that the power line carried sufficient voltage to justify the application of Article 1436c. Similarly, in its sixth point of error, appellant contends that neither article 1436c nor paragraphs C through G of Special Issue Three should have been submitted to the jury because (1) there was no evidence that appellant desired to perform work near the power line and (2) article 1436c did not establish any duty of appellant. Neither of these specific objections were made at trial; we therefore apply the rule that a statute which sets up standard precautions may provide relevant facts "having proper bearing upon the conduct of a reasonable man under the circumstances, which the jury should be permitted to consider." See Kraus v. Alamo National Bank of San Antonio, 586 S.W.2d 202 (Tex.Civ.App. Waco 1979) aff'd 616 S.W.2d 908 (Tex. 1981).
Appellant's trial objection to the submission of article 1436c was that no probative evidence showed that the voltage exceeded 600 volts, presumably the minimum power required for the statutory safety provisions to become effective. Although the propriety of the submission of the statute is not entirely dependent on this issue, we hold that the record as a whole supports a positive inference that the power line carried over 600 volts. For instance, Mr. Cecil Hickman testified by deposition that he was chief of safety programs for an architectural engineering firm and that he was "led to believe" that the power line carried about 7,200 volts. In the absence of an objection or further questioning about the origin of his "belief," we hold that this testimony has some probative value. Appellant's fourth, fifth and sixth points of error are overruled.
In its seventh point of error, appellant contends that paragraphs C through G should not have been submitted because there was no evidence that appellant knew or should have known that Mendoza was operating the truck and trailer in the vicinity of the power lines. Once again, this objection was not presented at trial. We will not hold that appellant may avoid taking reasonable safety precautions by hiring an independent contractor and thereafter absolving itself of all responsibility. Appellant is a hauling company employing elevating dump-trailers, and we certainly cannot say as a matter of law the trial evidence established that appellant had no reason to know that its operations might occur in the vicinity of overhead power lines. Appellant's seventh point of error is overruled.
In its eighth, ninth and tenth points of error, appellant contends that the trial court erred by submitting Special Issues Twelve through Eighteen, which sought to determine appellant's liability for contribution in the event that the jury found Fruehauf liable on a products liability theory. The jury's answers to the special issues established generally that the dump trailer was unreasonably dangerous; that appellant knew of the danger and failed to use reasonable care to warn of the defective condition; and that the failure to warn was a proximate cause of the accident. Appellant concedes, however, that the jury's answers to these special issues were ignored and that no liability for a defective product was assessed against it. The action complained of is immaterial and therefore harmless. Kraus v. Spencer, 620 S.W.2d 640 (Tex.Civ.App.Dallas 1981, writ ref'd n.r.e.). Harmless error will not support the reversal of a judgment. King Optical v. Automatic Data Processing of Dallas, Inc., 542 S.W.2d 213 (Tex.Civ.App. Waco 1976, writ ref'd n.r.e.). Appellant's eighth, ninth and tenth points of error are overruled.
We also overrule appellant's eleventh point of error in which it complained of the trial court's action in denying indemnity from Fruehauf if appellant was found liable in Special Issues Twelve through Eighteen; since Fruehauf was not found *784 liable under these issues, the trial court did not err by not ordering indemnification.
In its twelfth point of error, appellant contends that, under TEX.REV.CIV.STAT. ANN. art. 2212a, it was entitled to a $28,200 credit in the judgment because Walker Construction settled with appellee. In its thirteenth point of error, appellant contends that the trial court erred by allowing settling defendant Heldt Trucking a credit in the judgment, which increased the amount of the judgment against Texas Hauling in accordance with article 2212a.
Appellee originally settled with the Electric Company for $150,000, plus an assignment of its cause of action against Walker Construction and Heldt Trucking. Before trial, appellee settled the Electric Company's cause of action against Walker Construction for $15,000, plus a waiver of a remaining compensating lien of $13,200a total of $28,200. Appellant argues that it is entitled to a credit in the judgment for this amount under article 2212a. However, Walker Construction was appellee's employer, and appellant is not entitled to a credit for such a settlement. Varela v. American Petrofina Company of Texas, 658 S.W.2d 561 (Tex.1983). Appellant's twelfth point of error is overruled.
The jury awarded appellee $925,000. The trial court then subtracted the dollar amount of appellee's negligence and the Electric Company's settlement before computing the liability of Heldt Trucking, which was also subtracted from the amount to be owed by appellant, Mendoza and Fruehauf. Appellant contends that, because Heldt Trucking settled, its percentage of liability should have been computed before the amount of the Electric Company's settlement was subtracted. We find no support for this argument. The plain language of article 2212a § 2(d) allows each remaining defendant a reduction in liability. Appellant's thirteenth point of error is overruled.
Appellant also filed an "amended brief" in which it asserts seven "reply" points and five "amended" points of error. The arguments raised in that brief present overlapping contentions or different shades of previously presented points of error which have been previously resolved.
All points of error have been considered and are overruled. The judgment of the trial court is AFFIRMED.
BENAVIDES, SEERDEN and DORSEY, JJ., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1804523/ | 987 F.Supp. 505 (1997)
GENERAL FINANCIAL SERVICES, INC.
v.
Jimmy C. THOMPSON, et al.
Civil Action No. 96-384-B-M1.
United States District Court, M.D. Louisiana.
December 10, 1997.
*506 Lawrence R. Anderson, Jr., Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Plaintiff.
James F. Abadie, Baton Rouge, LA, for Defendants.
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
POLOZOLA, District Judge.
I. FACTS AND BACKGROUND
Plaintiff, General Financial Services, Inc. ("General"), filed this case to collect payment upon three promissory notes and to have recognized and maintained two collateral mortgage "packages," each with a collateral mortgage note and a collateral mortgage. The plaintiff alleges that the three notes are secured by the collateral mortgage packages. The loan documents will be referred to as Note 1, Note 2, Note 3, Collateral Mortgage Note 1, Mortgage 1, Collateral Mortgage Note 2 and Mortgage 2. Note 1 is a promissory note in the original principal sum of *507 $200,000 executed on February 25, 1985, by Jimmy C. Thompson ("Thompson") as maker, payable to the order of Capital Bank & Trust. Note 2 is a promissory note in the original principal sum of $200,000 executed on April 10, 1985, by Thompson as maker, payable to the order of Capital Bank & Trust. Note 3 is a promissory note in the original principal sum of $52,830.04 executed on March 30, 1984 by Thompson as maker, payable to the order of Capital Bank & Trust. Collateral Mortgage Note 1 is a collateral mortgage note in the original principal sum of $200,000 executed on January 11, 1984 by Thompson and the former Mrs. Thompson (who will be referred to herein sometimes as defendant Arline Wilcox). Mortgage 1 is the act of collateral mortgage for which the Collateral Mortgage Note 1 was paraphed "NE VARIETUR" for identification with Collateral Mortgage Note 1, executed on January 11, 1984 by both defendants. Together, Collateral Mortgage Note 1 and Collateral Mortgage 1 constitute a collateral mortgage package and they were pledged to secure Notes 1 and 2. Plaintiff alleges they secure Note 3 as well. Collateral Mortgage Note 2 is the collateral mortgage note in the original sum of $200,000 executed on April 4, 1984, by Thompson individually and as authorized agent and attorney-in-fact for Mrs. Thompson. Mortgage 2 is the act of collateral mortgage with which Collateral Mortgage Note 2 was paraphed "NE VARIETUR" for identification, executed on April 4, 1984 by Thompson individually and as authorized agent and attorney-in-fact for Mrs. Thompson. Together, Collateral Mortgage Note 2 and Collateral Mortgage 2 constitute a collateral mortgage package and they were pledged to secure Notes 1 and 2; plaintiff alleges they secure Note 3 as well. These documents together constitute the loan documents at issue in this case.
The loan documents were in default when Capital Bank & Trust was placed in receivership on October 30, 1987, and the Federal Deposit Insurance Corporation (FDIC) was appointed Receiver. FDIC, as Receiver for Capital Bank & Trust, transferred and assigned all of the loan documents to plaintiff for valuable consideration on June 5, 1995. Note 1 and Note 2 were lost, and were not delivered by FDIC to plaintiff.
Defendants have admitted: (1) the authenticity of the loan documents; (2) the signatures reflected on the loan documents; and (3) the plaintiff is the current holder of Note 3, Collateral Mortgage Note 1 and Collateral Mortgage Note 2. In addition, the defendants have not contested that the loan documents are in default or the amount of the balance.
II. SUMMARY JUDGMENT ANALYSIS
This matter is before the Court on cross motions for summary judgment filed by the plaintiff and defendants. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[1]
The well-established criteria that there must be no genuine issue of material fact before summary judgment will issue insures that a properly supported motion will not be defeated simply by the "existence of some alleged factual dispute."[2] With respect to "materiality," because the underlying substantive law is referenced to determine what facts are material,[3] only factual disputes that might affect the action's outcome under governing law can properly preclude summary judgment; disputes over facts which have no effect on the action's resolution are irrelevant.[4] However, even if material, a factual dispute will not prevent summary judgment *508 if the dispute is not "genuine." Such a conclusion is reached when the evidence could not lead a rational trier of fact to return a verdict for the non-moving party.[5] In examining the record, the Court will view the evidence and draw all reasonable inferences therefrom in favor of the non-moving party.[6]
In this situation, both plaintiff and defendant have filed motions for summary judgment, and the plaintiff bears the burden of persuasion on the issues at trial. Where the moving party bears the burden of persuasion on an issue at trial, the moving party must not only satisfy the initial burden of production on the summary judgment motion by demonstrating that there is no genuine dispute as to any material fact, but also the ultimate burden of persuasion on the claim itself by showing that it would be entitled to a judgment as a matter of law at trial.[7] However, the Court need not determine whether the moving party has carried its ultimate burden of persuasion until after the movant's initial burden of production has been fulfilled. Upon such a showing by the movant, the non-moving party is required to come forward with evidence which demonstrates the existence of a genuine issue for trial. When all the evidence presented by both parties "could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial'" and summary judgment is proper.[8]
In a situation where the moving party does not bear the burden of proof on the issue at trial, the movant may discharge its burden by simply informing the Court of the basis for its motion and either producing evidence that negates the existence of a material element in the non-moving party's claim or defense or identifying to the Court those portions of the record which demonstrate the lack of proof supporting a crucial element of the non-movant's case.[9]
Once the moving party makes the proper showing, the burden shifts to the non-moving party to designate "specific facts" in the record, by way of non-conclusory affidavits, depositions, answers to interrogatories or admissions on file, which evidence that there is a genuine issue for trial.[10] Because it bears the ultimate burden of proof at trial, the non-moving party is required to establish each element crucial to its action "since a complete failure of proof concerning an essential element of the non[-]moving party's case necessarily renders all other facts immaterial."[11] The non-moving party may not rest upon the mere allegations or denials of the moving party's pleadings and "must do more than simply show there is some metaphysical doubt as to the material facts."[12] When all the evidence presented by both parties "could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial'" and summary judgment is proper.[13]
III. ANALYSIS
This motion presents several issues of fact and law. The first issue concerns *509 whether or not the plaintiff may enforce Notes 1 and 2, which the FDIC lost before the notes were delivered to the plaintiff. The affidavit filed in the record by the FDIC states that the FDIC transferred and assigned both notes to the plaintiff. Defendants have offered no evidence to dispute the plaintiff's ownership. Although the plaintiff may not be the holder because the notes are not in the plaintiff's physical possession, the plaintiff can still enforce the notes if the plaintiff proves ownership. The plaintiff has met that burden here as shown by the FDIC affidavits and by defendant's failure to rebut that evidence. The owner of a lost promissory note may recover on it by complying with Louisiana Revised Statutes 13:3740 and 13:3741. The plaintiff has complied with those provisions as evidenced by the affidavit. Thus, the Court finds the plaintiff has met its burden of proving ownership, has complied with the pertinent statutes, and is entitled to enforce Note 1 and Note 2.
The defendant argues that the plaintiff is required to present the originals of Notes 1 or 2 in order to have the collateral mortgage notes and collateral mortgages recognized. This Court disagrees and finds that the plaintiff has met its burden of producing sufficient documentary proof of the actual secured indebtedness to enforce the collateral mortgages.[14]
The Court must next consider whether Notes 1, 2, and 3 are prescribed. The FDIC, as Receiver, obtained the notes from Capital Bank & Trust when the notes were in default and before prescription had run under either state or federal law. The FDIC assigned the notes to General. Thus, under the special statute of limitations provided by the Financial Institutions Reform, Recovery, and Enforcement Act ("FIRREA"),[15] the plaintiff is entitled to stand in the shoes of its assignor, FDIC.[16] The prescriptive period under FIRREA is found in 12 U.S.C. § 1821(d)(14) and provides, in pertinent part, that the prescriptive period "in the case of any contract claim [is] the longer of (I) the 6-year period beginning on the date the claim accrues; or (II) the period applicable under State law ...."[17] Under FIRREA, the cause of action accrues and the statute of limitations begins to run on "the later of (i) the date of the appointment of the [FDIC] as conservator or receiver; or (ii) the date on which the cause of action accrues."[18] The Court must first determine which prescriptive period is applicable to the notes under federal and state law. Under federal law, there is a six-year prescriptive period which began running on the date the FDIC was appointed receiver (October 30, 1987) and expired six years later on October 30, 1993.[19] Under state law, the applicable period is five years from date due or the last payment.[20] The defendant contends that the Court should apply the federal period because it is the longer period. The plaintiff, however, argues that the applicable state law period is actually the longer period because prescription was and remains interrupted under state law. In determining which prescriptive period applies, the Court finds that § 1821(d)(14) is clear on its face. The statute requires that the Court apply "the longer of (I) the 6-year period beginning on the date the claim accrues; or (II) the period applicable under State law."[21] If prescription has been interrupted under state law, the result is that the actual time a party has to file suit under *510 state law is longer than the actual time that is provided by the federal statute. Under these circumstances the state-law period applies. Even if the stated prescriptive period is shorter under state law, that does not end the inquiry. The determinative factor is the "applicable period," not the single code article which states the general prescriptive period.
Having set forth the above legal standard, the Court will first consider the prescriptive period as to Notes 1 and 2. Under federal law, Notes 1 and 2 are clearly prescribed. The federal prescriptive period began running on October 30, 1987, the date the FDIC was appointed receiver, and expired six years later, in October of 1993. The parties agree that Notes 1 and 2 were secured by the collateral mortgage packages. Thus, under well-established state law the continuous pledge of the collateral mortgage packages securing Notes 1 and 2 serves as a constant acknowledgment of the debt which continually interrupts prescription, whether or not the collateral mortgage note has prescribed.[22] The prescriptive period is six years under federal law and is five years under state law. Under state law, however, prescription has remained interrupted and has not run. Although the federal statute is a longer terms of years, the "applicable period under State law" is clearly the longer period and controls under the facts of this case. Thus, the Court finds that the state-law prescriptive period is applicable, and under state law, Notes 1 and 2 are not prescribed.
The Court must next consider the prescriptive period on Note 3. The defendants denied that Note 3 was secured by the collateral mortgage packages. If true, then Note 3 would be prescribed under both federal and state law, since prescription would not have been interrupted under state law by the continuous pledge rule. After hearing oral argument on the matter, this Court concludes that Note 3 was secured by the collateral mortgage packages. Thus, for the reasons set forth above concerning Notes 1 and 2, prescription was and remains interrupted on Note 3.
The Court now turns to a discussion of the security interest issues in this case. Plaintiff seeks to enforce Collateral Mortgage 1 and Collateral Mortgage 2 against the defendants. The collateral mortgage is a complicated security device unique to Louisiana. The purpose of this security device is to allow a mortgage on property to secure a fluctuating line of credit. Without deciding the state-law prescription issues related to the collateral mortgage packages under state law,[23] this Court finds the mortgages enforceable under the federal law.
The plaintiff alleges that Mortgage 1 and Mortgage 2 continue to be valid liens against the real estate described in those respective mortgages because General, as an assignee of the FDIC, a federal agency, is entitled to the benefit of federal law regarding the statute of limitations. The plaintiff contends the federal prescriptive period applies to the enforcement of a mortgage brought by an assignee of the FDIC based on FDIC v. Bledsoe[24] and on Cadle Co. v. 1007 Joint Venture.[25] This Court agrees that federal law controls the prescriptive periods of the mortgages.[26] In Farmers Home Administration v. Muirhead,[27] the Fifth Circuit held that a federal lien on property is *511 not subject to state-law statutes of limitations, and federal liens on property are not subject to any prescriptive period.[28] The plaintiff alleges that the Muirhead decision controls the prescriptive period on the mortgages and argues that the mortgages are imprescriptable. The defendant acknowledges that, because the FDIC took possession of the mortgages while they were in default, the federal statute of limitations on liens applies. The defendant has conceded that the Muirhead rule on prescription applies and the mortgages are imprescriptable under federal law. Thus, based on this stipulation, the Court concludes that Mortgage 1 and Mortgage 2 are enforceable against the property in this case.
The Court recognizes that the Collateral Mortgage Notes are an essential part of the state-law security device, but are not a part of the plaintiff's recovery under federal law. Because the Court has disposed of the security interest issue under federal law, it is not necessary for the Court to decide the issue of whether or not the Collateral Mortgage Notes are prescribed.
Finally, the Court must determine the liability of the defendant Wilcox on the loan documents. Both defendants admit signing Collateral Mortgage Note 1 and Collateral Mortgage 1. As to Collateral Mortgage Note 2 and Collateral Mortgage 2, Thompson signed the documents on behalf of defendant Wilcox, as her authorized agent and attorney-in-fact. The evidence shows that Mrs. Wilcox executed a Power of Attorney, together with Thompson, by notarial act dated January 18, 1982. This document was recorded in the records of the Clerk of Court of East Baton Rouge Parish, Louisiana, as Original 719, Bundle 9475, on January 19, 1982. In the document, Mrs. Wilcox appointed Thompson as her authorized agent and attorney-in-fact to execute and incur on her behalf any and all promissory notes and mortgages against community property, excluding the family home, Tara Lot # 575. This document was in effect when Thompson executed the Collateral Mortgage Note 2 and the Collateral Mortgage 2. The property subjected to the mortgage was community property other than Tara Lot # 575. Mrs. Wilcox argues that the power of attorney is not effective because it was not attached to these documents. The defendant offers no law to support this contention and none has been found by this Court. Thus, this Court finds Mrs. Wilcox liable as a maker of Collateral Mortgage Note 2 and Collateral Mortgage 2.
Mrs. Wilcox denies liability on Notes 1, 2, and 3. She argues that because only Thompson signed the notes, she is not liable on them. However, these obligations were incurred during the existence of the community property regime. All obligations incurred by either spouse during the existence of the community property regime are presumed to be community obligations.[29] Mrs. Wilcox does not contend that any of the obligations were not community obligations nor has she offered any evidence to rebut the presumption. Therefore, this Court must conclude that Notes 1, 2, and 3 were community obligations. "An obligation incurred by a spouse ... during the community property regime may be satisfied after termination of the regime from the property of the former community and from the separate property of the spouse who incurred the obligation."[30] Thus, this Court concludes that Mrs. Wilcox is liable on Notes 1, 2, and 3 to the extent of her interest in former community property.
IV. SUMMARY AND CONCLUSIONS
The Court finds that summary judgment should be granted in favor of the plaintiff on the following issues:
1. Plaintiff is the owner of Notes 1 and 2.
2. Plaintiff has complied with Louisiana Revised Statutes 13:3740 and 13:3741 and is entitled to enforce Notes 1 and 2 as the owner.
3. Plaintiff need not present the originals of Notes 1 and 2 in order to have the *512 Collateral Mortgage Notes and the Collateral Mortgages recognized.
4. Plaintiff has provided sufficient documentary evidence of the actual indebtedness to enforce the Collateral Mortgages.
5. The applicable prescriptive period under state law is longer than the period provided by 12 U.S.C. § 1821(d)(14) and thus is the applicable period under that statute.
6. Notes 1, 2, and 3 are not prescribed.
7. Defendant Wilcox is liable on Mortgage 2 as a maker.
8. Defendant Wilcox is liable on Notes 1, 2, and 3 to the extent of her interest in former community property.
9. The defendants are personally liable on Notes 1, 2, and 3.
10. The plaintiffs are entitled to enforce Mortgage 1 and Mortgage 2 against both defendants.
Therefore:
IT IS ORDERED that defendant's motion for summary judgment is denied.
IT IS FURTHER ORDERED that the plaintiff shall prepare a proposed judgment in accordance with this ruling which shall be approved as to form by the defendants and submitted to the Court on or before fifteen days after the order.
NOTES
[1] FED. R. CIV. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1560 (5th Cir.1992).
[2] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
[3] Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
[4] Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
[5] Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. See also Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir.1993) ("If, on the other hand, the factfinder could reasonably find in [favor of the non-moving party], then summary judgment is improper.").
[6] Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Newport Ltd. v. Sears, Roebuck & Co., 6 F.3d 1058, 1064 (5th Cir.1993).
[7] FED. R. CIV. P. 56(c). See also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
[8] Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1560 (5th Cir.1992).
[9] Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553; Latimer v. Smithkline & French Labs., Div. of Smithkline Beckman Corp., 919 F.2d 301, 303 (5th Cir.1990); Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990).
[10] Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Kelley v. Price-Macemon, Inc., 992 F.2d at 1413.
[11] Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552.
[12] Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
[13] Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.
[14] See M. Nathan & H. Marshall, The Collateral Mortgage, 33 LA. L. REV. 497-506.
[15] 12 U.S.C. § 1821(d)(14).
[16] Id.; Cadle Co. v. 1007 Joint Venture, 82 F.3d 102, 105 (5th Cir.1996); Federal Deposit Ins. Corp. v. Bledsoe, 989 F.2d 805, 810 (5th Cir. 1993); N.S.Q. Associates v. Beychok, 659 So.2d 729, 734 (La. 1995).
[17] 12 U.S.C. § 1821(d)(14)(emphasis added).
[18] Id.
[19] The date the FDIC was appointed receiver is the later date since the notes were in default, and the cause of action had accrued, when the FDIC acquired them.
[20] LA. CIV. CODE ART. 3498 which provides: "Actions on instruments, whether negotiable or not, and on promissory notes, are subject to a liberative prescription of five years. This prescription commences to run from the date payment is exigible."
[21] 12 U.S.C. § 1821(d)(14).
[22] Kaplan v. University Lake Corp., 381 So.2d 385, 391 (La.1979); Succession of Picard, 238 La. 455, 115 So. 2d 817 (1959); Scott v. Corkern, 231 La. 368, 91 So.2d 569 (1956). See also M. Nathan & A. Dunbar, The Collateral Mortgage: Logic and Experience, 49 LA. L. REV. 39, 45-47; M. Nathan & H. Marshall, The Collateral Mortgage, 33 LA. L. REV. 497, 507-08.
[23] It is not necessary for the Court to determine whether federal law requires the application of the state-law prescriptive period for mortgages in this case. Because of the stipulations made by the defendant, this issue is not before the Court. Thus, this Court will not decide the state-law prescription issues related to the collateral mortgage packages.
[24] 989 F.2d 805 (5th Cir.1993).
[25] 82 F.3d 102 (5th Cir.1996).
[26] FDIC v. Bledsoe, 989 F.2d 805 (5th Cir.1993); Cadle Co. v. 1007 Joint Venture, 82 F.3d 102 (5th Cir. 1996).
[27] 42 F.3d 964 (5th Cir.1995); cert. denied, 516 U.S. 806, 116 S.Ct. 50, 133 L.Ed.2d 16 (1995).
[28] Muirhead, 42 F.3d at 967; see also Magnolia Federal Bank for Savings v. United States of America, 42 F.3d 968 (5th Cir.1995).
[29] LA. CIV. CODE ART. 2361.
[30] LA. CIV. CODE ART. 2357. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2509581/ | 718 S.E.2d 736 (2011)
STATE
v.
GARY.
No. COA10-1471.
Court of Appeals of North Carolina.
Filed June 21, 2011.
Case Reported Without Published Opinion No Error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1866193/ | 188 Mich. App. 96 (1991)
469 N.W.2d 10
PEOPLE
v.
ALEXANDER
Docket No. 117349.
Michigan Court of Appeals.
Decided March 19, 1991, at 9:20 A.M.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and Janice M. Joyce Bartee, for the people.
Elizabeth L. Jacobs and Steven F. Fishman, for the defendant on appeal.
Before: CAVANAGH, P.J., and MAHER and FITZGERALD, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of delivery of a controlled substance (cocaine) in an amount more than 650 grams, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). He was sentenced to the mandatory term of life imprisonment. We affirm in part and remand for an evidentiary *98 hearing regarding defendant's receipt of Miranda[1] warnings.
The testimony in this case established that on July 12, 1988, defendant met with an undercover narcotics officer of the Detroit Police Department and arranged to sell the officer one "kilo" of cocaine for $26,000. The following night, defendant and the officer met in the parking lot of a fast food restaurant on the east side of Detroit where the transaction was to take place. After the officer showed defendant the money, the two waited for defendant's girl friend to arrive in another car with the cocaine. Approximately fifteen minutes later, a car with two individuals arrived. The officer and defendant approached the vehicle, and a female passenger picked up a grocery bag and pulled out a "plastic wrapped brick." She handed the brick to the officer and said, "Check it out." The officer then poked a hole in the bag and noticed a white powdery substance which was later determined to be cocaine. Next, as defendant and the officer were walking back to the officer's vehicle for the money, a backup crew arrived, and defendant was arrested along with the two individuals in the other vehicle.[2]
At trial, defendant testified in his own behalf. Although he admitted offering to sell the officer a kilo of cocaine for $26,000, he claimed that he never intended to sell the officer real cocaine. Instead, defendant claimed he "was going to run a scam" by selling the officer fake cocaine. Defendant said he contacted a friend, J.B., whom he asked to make up a package of fake cocaine and *99 that J.B. agreed. Defendant said that on the evening of the transaction he had his girl friend drop him off at the arranged meeting spot, and then sent her to J.B.'s to get the "package." He explained that after she arrived the transaction took place as planned; however, the next thing he knew the place was full of police officers and he was being arrested. The jury found defendant guilty of delivery of cocaine in an amount over 650 grams.
Defendant now appeals his conviction and sentence as of right. Specifically, defendant claims he is entitled to a new trial because the jury was improperly instructed and because he was improperly questioned by the prosecutor, contrary to the rule announced in People v Bobo, 390 Mich 355, 359; 212 NW2d 190 (1973). Defendant also claims that his mandatory life sentence is invalid because it constitutes cruel and unusual punishment.
I
First, we find that the trial court did not err when it read CJI 12.2.03 (definition of delivery and attempted delivery) in response to a jury note asking, "Is it considered a delivery if the defendant did not hand it to the U.C. personally?" Although defendant argues it was improper to define delivery as including an attempted delivery, the definition of delivery under the controlled substances act includes either an actual or attempted transfer. MCL 333.7105(1); MSA 14.15(7105)(1). Thus, an attempt is subsumed under the crime of delivery itself, and there is no separate offense of attempted delivery of cocaine. Wayne Co Prosecutor v Recorder's Court Judge, 177 Mich App 762, 764; 442 Mich 771 (1989). Moreover, defense counsel's contention that his argument to the jury would have been different *100 had he known an "attempt" instruction was going to be used is meritless because defense counsel did not focus on the issue of delivery in his closing argument, but rather on defendant's claim that he intended to "run a scam." There was no instructional error.
II
Next, defendant argues that his Fifth Amendment right to remain silent was impermissibly infringed when the prosecutor questioned him concerning his silence at the time of arrest and then further commented upon such silence during closing argument.
The prosecutor's cross-examination of the defendant concluded with the following exchange:
Q. Something else that I'm little confused about.
A. Yes, sir.
Q. The man turns the hat and the police [come] from all over, some in uniform, most of them, and you know you know it's the man, right?
A. Yes, sir.
Q. And you figure that you are there, and what you got here in this package is flour?
A. Yes, sir.
Q. Or something like that?
A. Yes, sir.
Q. And I assume first thing as they are putting the hands behind your back and putting the cuffs on you, you are saying to the police, hey, man, that's nothing but flour. Isn't that what you said?
A. No, sir.
Q. Why not?
A. Why not? Well, sir, first of all, I was upset because I was being arrested.
Following this exchange, defendant was excused, *101 and no objection to the line of questioning was raised. The parties then rested. During his rebuttal closing argument, the prosecutor made further reference to defendant's failure to inform the police of his belief that the package did not contain cocaine:
When you do the evaluating, figure out how you would have been reacting if you were trying to pull a rip, and I am not suggesting that any of you would be incline [sic] to do that, and the police are coming down on you and you know, man, I'm in trouble. What's the first thing you will say when the police are coming down and your hands are behind your back in the fancy bracelets? You are saying, what's going on? That's not even dope. That's Gold Medal flour. I ain't got no dope. Isn't that the first thing you will say, and you are going to say it.
Again, defense counsel raised no objection to this argument.
Although a failure to object at trial normally precludes review on appeal, review is nevertheless appropriate where a significant constitutional question is involved. People v Gilbert, 183 Mich App 741, 746-747; 455 NW2d 731 (1990); People v Davis, 181 Mich App 354, 355; 448 NW2d 842 (1989).
Recently, our Supreme Court released a series of decisions clarifying the rule announced in Bobo, supra at 359-361, regarding reference during trial to a defendant's silence. People v Sutton (After Remand), 436 Mich 575; 464 NW2d 575 (1990); People v McReavy, 436 Mich 197; 462 NW2d 1 (1990); People v Cetlinski, 435 Mich 742; 460 NW2d 534 (1990). In each of these cases, the Supreme Court held that Bobo is to be construed as being coextensive with federal precedent. Sutton *102 at 599; McReavy at 201; Cetlinski at 759. Consistent with federal precedent, the Supreme Court then stated in Sutton at 592, 599:
United States Supreme Court cases decided subsequent to our holding in Bobo establish that when a defendant takes the stand and testifies the privilege against self-incrimination is waived and the defendant may be impeached with both prearrest silence and postarrest pre-Miranda silence without violating the Fifth Amendment. Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980); Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982) (per curiam).
* * *
Construing People v Bobo as coextensive with federal precedent, we hold that impeachment of exculpatory testimony with pre- or postarrest pre-Miranda silence is permissible under the Michigan Constitution. Likewise, a defendant's right to remain silent is protected by the Fourteenth Amendment which precludes the use of a defendant's silence following Miranda warnings to impeach an exculpatory story. [Emphasis added.]
In Fletcher v Weir, a case similar to this one, the prosecutor impeached a defendant's exculpatory trial testimony by cross-examining him regarding his failure to advance his exculpatory explanation when he was arrested. Although the record was unclear regarding whether Miranda warnings had immediately been given, the United States Supreme Court made clear that the use of a defendant's postarrest pre-Miranda silence for impeachment purposes was constitutionally permissible. The Supreme Court explained its rationale as follows:
In Jenkins, as in other post-Doyle [v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976)] cases, *103 we have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him.... Finally, in Anderson v Charles, 447 US 404, 407-408; 100 S Ct 2180 [65 L Ed 2d 222] (1980), we explained that use of silence for impeachment was fundamentally unfair in Doyle because "Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.... Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances."
In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. [455 US 606-607.]
In Cetlinski at 747-748, our Supreme Court explained that a person's silence may constitute a statement of a party-opponent under MRE 801(d) (2), and that where the use of a defendant's silence for impeachment purposes is constitutionally permissible the use of such silence becomes a question of relevancy, an evidentiary matter. The evidentiary approach recognizes that the common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted[3] and, therefore, that silence may be relevant and probative for impeachment purposes where it would have been natural and expected under the circumstances for the defendant to have asserted the fact or story he relates during trial. Cetlinski at 760-761. Also see People v Collier, 426 Mich 23; 393 NW2d 346 (1986).
*104 With these principles and understandings in mind, we now turn to the instant case. Here, defendant gave no testimony regarding any statements made to the police at the time of his arrest, nor was there any other testimony indicating that statements were made. Further, like the situation in Fletcher v Weir, the present case involves a postarrest situation where the record is unclear regarding whether and, if so, when defendant received his Miranda warnings. As explained above, if the prosecutor's questioning and commentary concerned silence which occurred after Miranda warnings were given, the issue is a constitutional one. If not, the issue is strictly an evidentiary matter. Thus, we conclude that the issue concerning receipt of Miranda warnings is determinative of the present case.
To the extent the issue is solely an evidentiary one, we would find that error requiring reversal did not occur. We reach this conclusion on the bases that no objections were raised at trial, that defendant has not raised an evidentiary argument on appeal, and because we believe that using defendant's silence for impeachment purposes was proper in this case because the natural thing for a person to do under the circumstances would have been to assert that the cocaine was fake. Thus, from an evidentiary standpoint, we believe the trial judge would have been within his discretion in allowing defendant's silence to be used to impeach him.
However, to the extent the issue is one of constitutional magnitude (i.e., the prosecutor's questioning and commentary concerned silence after Miranda warnings were given), we hold that a new trial is warranted, because the prosecutor's injection of the silence issue into trial was deliberate, *105 the defendant's silence was further emphasized during closing argument, and defendant's credibility was critical to his defense.
Concerning the appropriate means for resolving the present case, we look to federal precedent for guidance. We note that where the record in Fletcher v Weir was unclear regarding the receipt of Miranda warnings, the United States Supreme Court remanded the case for proceedings consistent with its opinion.[4] Similarly, in another impeachment-with-silence case, where the record did not reveal when, if ever, Miranda warnings were given, the Tenth Circuit Court of Appeals in United States v Massey, 687 F2d 1348, 1353 (CA 10, 1982), remanded for an evidentiary hearing on the issue.
Accordingly, consistent with the approach taken by federal courts in similar cases, we remand the instant case to the trial court so that an evidentiary hearing may be held regarding the receipt of Miranda warnings. If the trial court determines that the prosecutor's questioning and commentary concerned silence after Miranda warnings were given, then defendant shall be afforded a new trial, because such questioning and commentary would have been constitutionally impermissible. Sutton at 580. However, if the trial court determines that the prosecutor's questioning and commentary concerned pre-Miranda silence, then defendant's conviction shall be affirmed, because such questioning and commentary would constitute neither a constitutional violation nor an evidentiary error requiring reversal.
*106 Finally, consistent with established precedent, we hold that defendant's mandatory term of life imprisonment does not constitute cruel and unusual punishment. People v Harmelin, 176 Mich App 524, 535; 440 NW2d 75 (1989), lv den 434 Mich 863 (1990), cert gtd ___ US ___; 109 L Ed 2d 742 (1990). See also People v Harding, 163 Mich App 298, 329; 413 NW2d 777 (1987), vacated on other grounds 430 Mich 859 (1988), and cases cited therein.
Affirmed in part and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[1] Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
[2] Although all three defendants were charged jointly, their cases were severed because of conflicting defenses, and separate trials were held.
[3] See Cetlinski at 747; 3A Wigmore, Evidence (Chadbourn rev), § 1042, p 1056.
[4] The Sixth Circuit Court of Appeals held that the petitioner (Weir) was not entitled to an evidentiary hearing on the basis that his motion after remand requesting such a hearing failed to allege that any comment was made before the jury regarding his silence which occurred after Miranda warnings were given. Weir v Fletcher, 680 F2d 437, 438 (CA 6, 1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1136872/ | 690 So. 2d 261 (1997)
Deborah DAIGLE
v.
ALLSTATE INSURANCE COMPANY.
No. 96-CA-1352.
Court of Appeal of Louisiana, Fourth Circuit.
March 5, 1997.
Writ Denied May 1, 1997.
Ricci & Giepert, Jack A. Ricci, Gary J. Giepert, New Orleans, for Plaintiff-Appellee Deborah Daigle.
Hailey, McNamara, Hall, Larmann & Papale, John T. Culotta, Metairie, for Defendant-Appellant Allstate Insurance Company.
Before SCHOTT, C.J., and BARRY and KLEES, JJ.
KLEES, Judge.
Allstate Insurance Company, defendant, appeals the judgment of the district court, holding the company liable for higher limits of uninsured motorist coverage than originally designated for the policy covering plaintiff Deborah Daigle. Upon our review of the record, we reverse.
On September 9, 1991, Deborah Daigle was in an automobile accident with Melissa Stierwald. Stierwald and her insurer, State Farm, settled with Daigle for the State Farm policy limits. However, Daigle had incurred damages greater than those limits.
Daigle's insurer, Allstate, is therefore next in line to cover Daigle's damages. The issue in dispute is the extent of Allstate's liability.
When Deborah's father, to whom the policy was issued, signed up with Allstate, he executed a selection of lower limits of uninsured *262 motorist coverage. Normally, under such a policy, UM coverage would be $100, 000/$300,000; Mr. Daigle signed a form providing that he would instead accept lower limits of $5000/$10,000. He signed this form on December 8, 1987. At this time, his family owned four automobiles.
Between this election of lower limits and the accident in question, however, the Daigles made various changes in their policy. Specifically, they sold several cars and purchased several others; sales and purchases were not always made simultaneously. However, at no time did the Daigles insure more than the original four vehicles. Also, another driver was added to the policy: Deborah's brother, Edgar Daigle III.
When Allstate only offered coverage under the original, lower limits, Daigle filed suit against Allstate, arguing that the alterations in her family's drivers and automobiles constituted material changes that created a new policyin which case, a separate selection of lower coverage limits would have been required. Allstate argued that the vehicle changes made to the policy in that time were only substitutions, and thus the Daigle's policy was sustained as a renewal policy, one in which the original selection of lower limits remained valid.
Both Daigle and Allstate moved for summary judgment on the issue of coverage limits; the district court ruled in favor of Daigle, finding that cars had been added to the policy and not deleted, and therefore were additions rather than substitutions. A separate selection of lower limits would have been necessary; since there was no such selection, the district court ruled that the higher limits of coverage were effective. From this judgment Allstate appeals.
An initial rejection or selection of lower limits of UM coverage is valid for renewal, reinstatement and/or substitute policies, and the insurer is therefore absolved from greater UM liability for such policies. See Allen v. State Farm, 617 So. 2d 1308, 1312 (La.App. 3 Cir.1993), Bryant v. Viking Ins. Co. of Wisconsin, 579 So. 2d 1241 (La.App. 3 Cir. 1991).
Not every alteration in an insurance policy or insurer's position mandates that an insurance policy be considered new, rather than a renewal. Lovoi v. Ladreyt, 94-1002 (La.App. 5 Cir. 4/12/95), 655 So. 2d 387, writ denied, 95-1216 (La.6/23/95), 656 So. 2d 1031. Specifically, Louisiana courts have held that changes in vehicles that are only substitutions for previously covered vehicles do not convert a renewal policy into a new policy. See Tugwell v. State Farm Ins. Co., 597 So. 2d 1039 (La.App. 1 Cir.1992), reversed on other grounds, 609 So. 2d 195 (La.1992.) However, the addition of even a single car can create a new policy. Donaghey v. Cumis Insurance Society, 600 So. 2d 829 (La.App. 3 Cir.1992.)
This situation falls between these two bright lines. Neither the Daigles nor Allstate clearly designated the new cars as additions or substitutions at the time they were added to the policy; however, based on the information before us, we conclude that the vehicles must be regarded as substitutions.
The record shows that the Daigles sometimes did not obtain and cancel cars simultaneously. However, at no time did they ever own and operate more than the four cars originally covered under the policy. As the policy was designed to cover four cars, the newer vehicles brought in must be thought of first as substitutions for the older cars already deleted.
Also worthy of note is Mr. Daigle's deposition; he states at one point that he considered these cars as replacementsthat he was switching to better vehicles for his children. Later, when asked if he was substituting the new vehicles for the old, he agreed. Apparently he originally intended for these cars to be substitutes for the older ones he had sold. If the Daigles themselves considered these cars to be substitutions, then the vehicles should retain that classification.
Finally, we consider Daigle's contention that the addition of Edgar Daigle III as a driver constitutes a material change to the policy. This argument is without merit. Although the addition of another insured person to a policy can constitute a truly material change, Edgar Daigle III was already an *263 insured person under their original policy. The alteration in his status, from an insured passenger to a driver, is not significant enough to convert the renewal policy into a new policy.
After our review of the record and for the reasons stated above, we cannot join in the reasoning of the trial court. Accordingly, we reverse the judgment of the lower court and remand this case for further proceedings.
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1161102/ | 961 P.2d 750 (1998)
Ruben BARRIOS-LOMELI, Appellant,
v.
The STATE of Nevada, Respondent.
No. 27484.
Supreme Court of Nevada.
August 28, 1997.
Rehearing Denied July 28, 1998.
Steven G. McGuire, State Public Defender, James P. Logan, Chief Appellate Deputy Public Defender, and Timothy P. O'Toole, Appellate Deputy Public Defender, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney, and John C. Eck, Deputy District Attorney, Carson City, for Respondent.
OPINION
YOUNG, Justice.
In Barrios-Lomeli v. State, 113 Nev. 952, 944 P.2d 791 (1997), this court reversed a conviction because the police violated appellant Ruben Barrios-Lomeli's rights by searching his parked, unoccupied vehicle without a warrant. The state filed a petition for rehearing. NRAP 40(c). We deny rehearing. See State v. Harnisch, 114 Nev. ___, 954 P.2d 1180 (1998).
However, we take this opportunity to address the state's contention that the one-hour limit in NRS 171.123(4)[1] is an inadequate amount of time to obtain a search warrant. After careful consideration, we reject the state's contention and refuse to extend the time limit prescribed in the statute.
NRS 171.123(4) allows an officer to detain an individual for a reasonable time, but expressly states that "in no event" shall the law enforcement officer's detention be longer than sixty minutes. This is a clear expression of the legislature's intent to keep the definition of a reasonable detention within a sixty-minute time frame. According to NRS 171.123(4), a detention longer than sixty minutes is unreasonable per se. Thus, rigid adherence to the one-hour limit was the clear intent of the legislature.
"We are not empowered to go beyond the face of a statute to lend it a construction *751 contrary to its clear meaning." Union Plaza Hotel v. Jackson, 101 Nev. 733, 736, 709 P.2d 1020, 1022 (1985). Moreover, "if a statute clearly and unambiguously specifies the legislature's intended result, such result will prevail even if the statute is impractical or inequitable." Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 (1990). Therefore, if the sixty-minute time frame is inadequate, that question should be brought before the legislature, not this court.
Further, the state appears to misapprehend NRS 179.045, the provision allowing telephonic search warrants, and exaggerate the logistics of complying with its requirements. In 1995, the relevant time period, NRS 179.045 provided in material part:
2. In lieu of the affidavit required by subsection 1, the magistrate may take an oral statement given under oath, which must be recorded in the presence of the magistrate or in his immediate vicinity by a certified court reporter or by electronic means, transcribed, certified by the reporter if he recorded it, and certified by the magistrate. The statement must be filed with the clerk of the court.
3. After a magistrate has issued a search warrant, whether it is based on an affidavit or an oral statement given under oath, he may orally authorize a peace officer to sign the magistrate's name on a duplicate original warrant. A duplicate original search warrant shall be deemed to be a search warrant. It must be returned to the magistrate who authorized the signing of his name on it. The magistrate shall endorse his name and enter the date on the warrant when it is returned to him. Any failure of the magistrate to make such an endorsement and entry does not in itself invalidate the warrant.
(Emphasis added.) In light of today's technological advancements, there is absolutely no reason to move backward so as to effectively ignore the efficiency with which these warrants may be procured.
Obtaining a search warrant outside the physical presence of the magistrate has long been permitted. In 1987, we considered the validity of a telephonically obtained search warrant. Sanchez v. State, 103 Nev. 166, 734 P.2d 726 (1987). In Sanchez, the defendant argued that the warrant was invalid because the affidavit was not taken in the presence of the magistrate as required under NRS 179.045. Id. at 168, 734 P.2d at 727. We held:
The specific requirement that the oral statement be recorded in the presence of the magistrate is read broadly by this court. The telephone and the ability to arrange conference calls greatly expands the presence of a magistrate. When ... the magistrate is convinced that the requesting authority is a police officer and knows that the deputy district attorney is recording the statement, the magistrate's presence is extended electronically by telephone. Such a recording, albeit outside the physical presence of the magistrate, is nevertheless "in the presence of the magistrate" for purposes of NRS 179.045(2).
Id. at 168-69, 734 P.2d at 728 (footnote omitted). Nevada statutes have authorized such telephonic search warrants since 1981.[2] 1981 Nev.Stat., ch. 685, § 1, at 1652.
Since Sanchez, telecommunication devices have continued to become more advanced and portable. Facsimile machines, cellular phones, and portable computers have become commonplace. These technological advancements have significantly reduced the state's procedural burden to expeditiously procure a search warrant. With this burden reduced, the protection afforded to personal liberties should be increased accordingly. Now is not the time to dilute the protection provided by the state and federal constitutions. This is particularly true when a well-known prosecutor in northern Nevada can be quoted as saying that courts have transformed the Constitution into a "meaningless ... old rag," and "if you want to get around the Fourth Amendment search and seizure clause, a good prosecutor and good police can do it *752 and they know it." Mike Henderson, Criticism of Constitution Draws Fire, Reno Gazette-Journal, Sep. 22, 1997, at 1B.
Indeed, when speaking of intrusion into the life of our citizens by recognizing more power in the State with respect to search and seizure, we are reminded of the eloquent statement of William Pitt, Earl of Chatham, spoken several years before the founding of our nation:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enterall his force dares not cross the threshold of the ruined tenement!
(quoted in Miller v. United States, 357 U.S. 301, 307, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958)).
Further, we commend to those who may be tempted to criticize judicial vigilance over constitutional protections against unreasonable searches and seizures
that we are in danger of forgetting that the Bill of Rights reflects experience with police excesses. It is not only under Nazi rule that police excesses are inimical to freedom. It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.
Davis v. United States, 328 U.S. 582, 597, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946) (Frankfurter, J., dissenting).
In conclusion, we deny rehearing and decline the state's invitation to extend the sixty-minute time limit in NRS 171.123(4).
SPRINGER, C.J., and SHEARING, J., concur.
ROSE, Justice, concurring.
On rehearing, the State asks us to reconsider our decision and inter alia, to provide flexibility to the one hour time limit set forth in N.R.S. 171.123(4). If law enforcement showed that a search warrant could not be obtained in one hour with a good faith effort, I would be inclined to give some relief from the rather stringent one hour requirement. However, that is not the case presented, and therefore, I join in denying the petition for rehearing.
MAUPIN, Justice, dissenting.
Despite the elegance with which the majority expresses its point, I believe the potential for logistical difficulties in obtaining search warrants, even in this "electronic age," merits nonrigidity in the application of the one hour time limit. For example, whether in a remote area of our state, or within the congested confines of the Las Vegas valley, a police officer in a squad car will inevitably be at a loss to comply with the rule in some instances, with or without a mobile or land-based telephone. Also, I still believe that the court wrongfully decided the underlying issue, to wit: whether the contraband seized from appellant's car should have been suppressed on Fourth Amendment grounds. See California v. Carney, 471 U.S. 386, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985). Thus, I would fully rehear the matter.
NOTES
[1] NRS 171.123(4) provides: "A person must not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the immediate vicinity of the place where the detention was first effected, unless the person is arrested." (Emphasis added.)
[2] Nevada is not alone in this respect. California has allowed for telephonic search warrants to be issued since 1973. Cal.Penal Code § 1526(b)(2); People v. Aguirre, 26 Cal. App. Supp. 3d 7, 103 Cal. Rptr. 153, 155 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725547/ | 675 So. 2d 736 (1996)
Ernest M. CARTER and Brenda D. Carter
v.
PATTERSON INSURANCE COMPANY and Pierre and Associates, Inc.
No. 96-CA-0111.
Court of Appeal of Louisiana, Fourth Circuit.
May 22, 1996.
*737 James L. Trinchard, Trinchard & Trinchard, New Orleans, for Appellee.
Ermence Debose-Parent, New Orleans, for Appellants.
Before LOBRANO, LANDRIEU and MURRAY, JJ.
LOBRANO, Judge.
Plaintiffs, Ernest and Brenda Carter, appeal the trial court's grant of defendant, Patterson Insurance Company's motion for involuntary dismissal which dismissed their lawsuit for damages pursuant to an insurance policy issued by Patterson. The trial court upheld the validity of a named driver exclusion in Patterson's policy which precluded coverage for the accident at issue. The facts are as follows.
At the request of Brenda Carter, through her insurance agency, Pierre and Associates (Pierre), Patterson issued its policy No. 7L0052517 which provided liability coverage on a 1975 Ford LTD and a 1978 Plymouth Trailblazer owned by plaintiffs. At the time Mrs. Carter applied for the insurance, Pierre quoted her a premium which provided coverage for her daughter, Shantell, and a lower premium for a policy which excluded coverage for her daughter. Mrs. Carter testified that because her daughter did not have a driver's license at that time, she elected to exclude Shantell from coverage and executed an exclusion endorsement to that effect. Although Mr. Carter disputes the authenticity of his signature on the copy of the exclusion form dated February 11, 1994, he admits that on March 22, 1994 he received and signed another exclusion form excluding coverage of his daughter, effective February 11th.[1]
On April 11, 1994 the Carters purchased a 1994 Mercury Topaz. Mrs. Carter contacted Pierre and requested "full coverage" for the Topaz and cancellation of coverage on the Plymouth. Although the liability coverage remained the same, Patterson increased coverage *738 on the Carter's policy to include UM, medical payment, collision and comprehensive coverage.[2]
Shantell Carter obtained her driver's license on June 1, 1994. Plaintiffs did not notify Patterson or Pierre of this fact but assumed that Shantell was covered when they requested "full coverage" for the new Topaz in April. Mrs. Carter testified that when she requested coverage for the new Topaz she was not asked about the existing exclusion for her daughter. Melvin Pierre of the Pierre Agency, however testified that he told Mrs. Carter, upon her initial application in February, that the exclusion of Shantell was for all cars insured under the policy.
On August 1, 1994 Shantell was involved in an accident while driving the Topaz. Patterson denied coverage for the Topaz's damages and Shantell's medicals, as well as the property damage claim of the parked vehicle Shantell hit.[3] This suit followed.
Initially, a default judgment was rendered against Patterson awarding plaintiffs their property loss, medicals, rental fees, attorney fees and court costs. However, Patterson timely filed a motion for new trial asserting that the judgment was contrary to the law. In particular, Patterson relied on the named driver exclusion executed by the plaintiffs. The trial court granted a new trial, and after hearing plaintiff's evidence, dismissed their lawsuit on Patterson's motion for involuntary dismissal. The court reasoned that it was undisputed that the plaintiffs excluded Shantell from coverage when the policy was purchased and never notified Pierre when Shantell obtained her driver's license. The court opined that when the Topaz was added to the policy and the Plymouth dropped, even though coverage was increased, there was no new policy issued and thus the exclusion endorsement for Shantell remained in effect. The court rejected, as having no legal basis, plaintiff's assumption that once Shantell obtained a driver's license she would be covered under the policy.
Plaintiffs appeal that judgment asserting various arguments directed to the liability of Patterson on the coverage issue. Although the trial court judgment of October 5th dismisses all defendants, plaintiffs have presented no argument concerning Pierre's liability nor has Pierre filed a brief in this court.
First, plaintiffs complain that the trial court erred in setting aside their default judgment and granting a new trial. We find no merit in this argument.
Code of Civil Procedure article 1972 mandates that a new trial be granted if the judgment is contrary to the law and evidence, while article 1973 provides the court with the discretion to grant a new trial "if there is good ground therefor". If a trial judge is convinced that the judgment would result in a miscarriage of justice, a new trial should be ordered. Lamb v. Lamb, 430 So. 2d 51, 53 (La.1983). With respect to a new trial motion filed subsequent to the confirmation of a default judgment, the courts are particularly cautious in examining the circumstances surrounding the judgment because of the general policy consideration "that every litigant should be allowed his day in court." Id.
Plaintiffs' argument centers around the fact that Patterson offered no reasons for failing to appear and timely answer. While we recognize that the mere failure to answer, without more, is not sufficient grounds for a new trial, Lamb v. Lamb, supra, Patterson asserted that the default judgment exceeded the limits for medical payments and did not consider the deductible on the collision loss, and also presented documentation which strongly suggested that no coverage existed for Shantell's accident. Considering all of those factors, it would have been a miscarriage of justice for the trial court not to grant a new trial. There certainly was no abuse of discretion in the decision to grant a new trial.
*739 Next plaintiffs argue that the trial court's reasoning, which concluded that plaintiffs failed to notify Patterson of Shantell's driver's license, was irrelevant to the case and is reversible error. By this argument plaintiffs are really asserting that they had no obligation to tell Patterson when Shantell obtained her license because no one at Pierre or Patterson told them they had to do so.
Absent any contractual or statutory authority, Patterson had no obligation to advise plaintiffs concerning any notification about Shantell obtaining her driver's license. Furthermore, it certainly was not incumbent on Patterson to keep abreast of Shantell's driving status. There was no error in the trial court's rationale that plaintiffs' failure to notify Patterson relieved Patterson of any obligation to include Shantell within the policy's coverage.
Plaintiffs next argue that a new policy was created when the Topaz was added, and thus a new named driver exclusion was required. In support, plaintiffs rely, by analogy, on the concurring opinion in Francis v. U.S. Fidelity & Guaranty Co., 94-721 (La. App. 3rd Cir. 3/8/95) 653 So. 2d 45, writ denied, 95-1305 (La. 9/15/95), 660 So. 2d 459 and Thibodeaux v. Champion Insurance Co., 614 So. 2d 232 (La.App. 3rd Cir.1993), cited in that concurrence.
The issue in Francis was whether the "miss and run" exclusion in USF & G's uninsured motorist coverage violated public policy. The court found that it did and held that the policy provided UM coverage. The concurring judge agreed with the majority result but for the reason that the vehicle involved in the accident was an additional vehicle added to an existing policy and thus a separate rejection of UM coverage was required. Relying on Thibodeaux, supra, the concurring judge concluded that "the addition of another vehicle to an existing policy amounts to an increase in the policy's coverage and has the effect of creating a new policy...."
By analogy plaintiffs argue that when the Topaz was added to their policy, a new policy was created which required a new named driver exclusion.
Thibodeaux is distinguishable, both legally and factually, from the instant case. Legally, R.S. 22:1406(D)(1)(a)(i) provides that the insured's initial written rejection of UM coverage is applicable to a renewal, reinstatement or substitute policy. There are no statutory requirements regarding the applicability of named driver exclusions in instances of renewal or substitute policies. Factually, the Thibodeaux cased involved the addition of a vehicle to the existing policy. In the context of UM coverage, the court held that a new policy was created. In the instant case, the Topaz was substituted for the Plymouth. In Allen v. State Farm Mutual Automobile Ins. Co., 617 So. 2d 1308 (La.App. 3rd Cir.1993) the court relied on the distinction between an additional vehicle versus a substitute vehicle in holding that it was unnecessary for the insured to execute a new UM rejection/selection form where no additional vehicles were added to the policy.
In the instant case there was no added vehicle, only a substitution of vehicles. We hold that no new insurance policy was created and Patterson was not required to obtain another named driver exclusion form. This result is consistent with the holdings of the UM cases relied on by plaintiffs. The named driver exclusion applied to all vehicles covered under Patterson's policy. That policy did not cease, nor was a new policy created, when the Topaz was substituted for the Trailblazer. See, Moore v. Young, 490 So. 2d 519 (La.App. 4th Cir.1986) where we held the policy to be a "renewal" rather than new policy. Compare, Mercola v. State Farm Mutual Automobile Insurance Co., 588 So. 2d 163 (La.App. 4th Cir.1991). We find no merit in this argument.
Next, plaintiffs question the authenticity of Ernest Carter's signature on the exclusion endorsement form and application for insurance both dated February 11, 1994. Plaintiffs assert that Ernest Carter could not have signed that document because on March 22, 1994, he was sent another form by mail which requested his signature. Ernest Carter does admit that he signed the form sent on March 22, 1994, which shows an effective date of February 11, 1994. Plaintiffs also argue that Patterson should be required to *740 produce the documents containing the original signature of Ernest Carter before it can rely on the exclusion since only copies were produced at trial. Fraud and forgery are argued as grounds for vitiating the exclusion.
The trial court resolved plaintiffs' argument on those issues by finding that both plaintiffs admitted executing an exclusion of Shantell from coverage effective February 11, 1994. The record supports that finding. Plaintiffs admit applying for the insurance, executing the exclusion endorsement, (albeit Mr. Carter signed it in March) and requested that the Topaz be substituted for the Plymouth.[4] Considering these facts, we find irrelevant plaintiffs' concerns about the authenticity of Ernest Carter's signature. Even though it is undisputed that he was not present in Pierre's office on February 11th and could not have signed the application and exclusion form at that time, both plaintiffs admit that Ernest Carter did in fact subsequently sign the documents in March.[5] Plaintiffs do not deny that they agreed to exclude Shantell from coverage, and they admit that they failed to notify Pierre when Shantell obtained her license.
Plaintiffs' real complaint is that they did not intend to exclude their daughter from coverage on the Topaz and they assumed she would be covered when the Topaz was added to the policy. Unfortunately they had no real basis in fact or law for that assumption. Melvin Pierre testified that at the time of the initial application in February and when the Topaz was added in April, in order to give plaintiffs a quote on the premiums, he explained the different amounts with and without coverage for Shantell. Furthermore, the exclusion endorsement form says it applies to the policy and all vehicles covered by it, not just one particular vehicle. Finally, plaintiffs paid the lower premium based on the exclusion. Thus, because there is no support for plaintiffs' erroneous assumptions and because they both admit executing the exclusion endorsement, their argument concerning authenticity of Mr. Carter's signature on the original application is really irrelevant to the legal issue of exclusion of coverage.
Citing La.R.S. 32:900(B)(2), which requires omnibus coverage in all liability policies, plaintiffs next argue that the named driver exclusion which they executed violates public policy and has no effect. Prior to the adoption of Act 979 in 1992 plaintiffs' argument would have merit. However Act 979 amended R.S. 32:900 by adding Section L which provides:
"Notwithstanding the provisions of paragraph B(2) of this Section, an insurer and an insured may by written agreement exclude from coverage any named person who is a resident of the same household as the named insured."
Thus, we have no doubt that the 1992 amendment now permits an agreement between the insurer and insured excluding coverage of a particular named person who is a member of the insured's household. See, Threats v. Derousselle, 93-1047 (La.App. 3rd Cir. 4/6/94), 636 So. 2d 276. Plaintiffs' policy is governed by the amendment since it was purchased in February of 1994. Edwards v. Automotive Casualty Insurance Co., 92-151 (La.App. 3rd Cir. 3/2/94), 634 So. 2d 1278, writ denied, 94-0804 (La. 5/6/94), 637 So. 2d 1055, relied on by plaintiffs, is not relevant since the policy in that case was issued prior to Act 979. In fact, Act 979 is not even mentioned in the opinion.
The legislature has declared that excluding a named driver, who is a member of the insured's household, does not violate the public policy which mandates omnibus liability coverage. We cannot overturn that legislative declaration.
*741 Finally, plaintiffs argue that because the Topaz's lienholder did not agree to the exclusion of Shantell from coverage, its lack of consent somehow vitiates that exclusion. No authority is cited in support of that argument. Perhaps if the lienholder were a party to this litigation and had sustained a loss of its security interest, the argument would warrant consideration. However, plaintiffs cannot assert the lienholder's right to nullify an exclusion endorsement they admittedly requested and executed. Simply put, that argument is one the lienholder may have, but not plaintiffs.
For the reasons assigned, the trial court judgment is affirmed.
AFFIRMED.
NOTES
[1] Apparently a similar request had been made by Patterson on March 11, 1994 but had not been returned by the Carters. Thus another request was sent on March 22.
[2] Because both vehicles were covered by the same policy, Melvin Pierre of the Pierre Agency testified that the increased coverage was to apply to the Ford LTD as well.
[3] Dan Ludwig intervened in these proceeding seeking recovery of his property damages. He did not appeal Patterson's dismissal, however his claim against the Carters apparently is still pending in district court.
[4] Reviewing the testimony of both Brenda and Ernest Carter it is difficult to understand whether, in some instances, Ernest Carter's signature is contested. However, it is clear that both the application and exclusion endorsement were signed by him sometime in March, with an effective date of February 11, 1994.
[5] The testimony of Melvin Pierre, as well as the documents themselves, suggests that when Pierre and/or Patterson realized that Ernest Carter did not sign the application or the exclusion, copies were sent for his signature. The documents which are signed by him have "XXX" in the space next to his signature which is consistent with Pierre's testimony about his written request for Mr. Carter's signature. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1734023/ | 367 So. 2d 1161 (1979)
HAUGHTON ELEVATOR DIVISION, Reliance Electric Corp., Plaintiff-Appellant-Relator,
v.
STATE of Louisiana, Through the DIVISION OF ADMINISTRATION, Defendant-Appellee-Respondent.
No. 62649.
Supreme Court of Louisiana.
January 29, 1979.
Rehearing Denied March 5, 1979.
Dissenting Opinion March 7, 1979.
*1164 William J. Guste, Jr., Atty. Gen., Tommy D. Teague, Staff Atty., Dept. of Justice, Baton Rouge, for defendant-respondent.
Henry D. Salassi, Jr., Frank P. Simoneaux, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellant.
TATE, Justice.
The public contract law requires that all public work done by a public entity shall be advertised and let by contract to the lowest responsible bidder. La.R.S. 38:2211 et seq. (1977). The issue before us is whether an awarding authority which advertises for bids must give adequate notice and a fair hearing on unfavorable charges to a bidder which the authority intends to disqualify as a non-responsible bidder; and if so, whether the disqualified bidder in this case was afforded these procedural protections under the facts of this case.
The plaintiff (low bidder, but disqualified by the agency as not responsible) sued to enjoin the letting of the contract to other bidders. The trial court's denial of a preliminary injunction[1] was affirmed by the court of appeal. 359 So. 2d 693 (La.App. 1st Cir. 1978). We granted certiorari, 362 So. 2d 576 (1978), to review the plaintiff's contention that, as low bidder on the contracts, before the rejection of its bid it was entitled to adequate notice and a fair opportunity to rebut the charges of irresponsibility upon which the state agency based its disqualification.
The facts are undisputed that the plaintiff, Haughton Elevator Division, was the lowest bidder on nine elevator maintenance contracts advertised by the Louisiana Division of Administration in the spring of 1977. Haughton was not awarded the contracts, however, based upon a determination by the Division of Administration that Haughton was not a "responsible" bidder under La.R.S. 38:2211. This disqualification was based upon allegedly unsatisfactory performance by Haughton of an earlier elevator maintenance contract covering elevators at Charity Hospital in New Orleans.[2]
I.
The basic statutory law governing this case is contained in La.R.S. 38:2211 et seq. This enactment provides that public works projects exceeding the sum of $5,000 be advertised for bid and that the contract be awarded to the "lowest responsible bidder."
The Louisiana jurisprudence interpreting this statute or its predecessors has long established that a low bidder may on a contract so advertised sue to set aside the award of the contract to another bidder and may enjoin the agency from the execution of such contract, where the agency arbitrarily rejected the low bid. Sternberg v. Board of Commissioners, 159 La. 360, 105 So. 372 (1925); Standard Highway Company v. Police Jury, 158 La. 294, 102 So. 819 (1925); St. Landry Lumber Company v. Mayor and Board, 155 La. 892, 99 So. 687 (1924).
The statute, insofar as it requires advertising and the obtaining of competitive bids, is a prohibitory law founded on public policy. It was enacted in the interest of the taxpaying citizen and has for its purpose their protection against contracts of public officials entered into because of favoritism and possibly involving exorbitant and extortionate prices.
See, e. g., Smith v. Town of Vinton, 216 La. 9, 43 So. 2d 18, 21 (1949); Boxwell v. *1165 Dept. of Highways, 203 La. 760, 14 So. 2d 627, 631 (1943).
The statute vests in the awarding authority the power and discretion to determine the responsibility of the bidder and to reject all bids if none is satisfactory, but the law does not permit the arbitrary selection of one which is higher and the rejection of others which are lower. The discretion must be exercised in a fair and legal manner and not arbitrarily. See, e. g., St. Landry Lumber Company v. Mayor and Board, 155 La. 891, 99 So. 687 (1924).
A comprehensive discussion of Louisiana law in this area is Housing Authority of Opelousas, La. v. Pittman Construction Co., 264 F.2d 695 (U.S.Ct.App. 5th Cir. 1959). As correctly summarized by that opinion:
Louisiana follows the general rule of vesting an awarding body with discretion subject to judicial review. Courts will not substitute their judgment for the good-faith judgment of an administrative agency. Nevertheless, an awarding body's administrative discretion must be exercised in a fair and legal manner and not arbitrarily. Consequently, the disqualification of the lowest bidder, without giving the low bidder a fair chance to disprove charges of irresponsibility, offends principles of fair play and is an arbitrary abuse of discretion inconsistent with the letter and the spirit of the Louisiana public contract law.
II.
The requirements of procedural due process apply to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701 at 2705, 33 L. Ed. 2d 548 at 552 (1972).
Under the Louisiana jurisprudential interpretations, La.R.S. 38:2211 creates a right in the lowest responsible bidder to receive the advertised contract, if any is let as a consequence of the biddings.
Under the Roth approach to procedural due process, a two-part analysis is followed. First, a determination must be made as to whether there has been a deprivation of a protected liberty or property interest. If there has not been, no hearing is required.[3] If, however, there has been such a deprivation, some type of "hearing" is required and a determination must be made as to what type on the basis of the nature of the protected private interests and the governmental interest at issue.[4]
In federal due process cases, the type of hearing required varies according to the nature of the protected interest involved.
For instance, in the temporary suspension of high school students, due process required "at least" the rudimentary safeguards "that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." Goss v. Lopez, 419 U.S. 565, 581, 95 S. Ct. 729, 740, 42 L. Ed. 2d 725.
Pre-termination due process requirements for the discharge of a non-probationary civil service employee were held to be satisfied by a prior notice of the reasons and an opportunity for the employee to respond and challenge them in a non-evidentiary "hearing," since provision was made for a full evidentiary hearing following the termination and retroactive relief to the employee if the discharge was unjustified. Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974). See, to the same effect, Matthews v. Aldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (termination of social security disability benefits).
*1166 On the other hand, Goldberg v. Kelley, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) required a full-blown evidentiary hearing prior to termination of welfare benefits, since the particular deprivation of private interest affected concerned persons on the very margin of subsistence who might be deprived of the means to live and to whom retroactive post-termination relief would be ineffectual.
In summary, the test for the type of hearing required, once it has been established that there has been or will be a deprivation of a protected interest, appears to be a balancing test. See Goldberg, cited above at 307 U.S. 262-65, 90 S.Ct. 1017-19: "`[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.'" 397 U.S. 263, 90 S. Ct. 1018. Stated differently, "The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be condemned to suffer grievous loss * * * depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interests in summary adjudication." 397 U.S. 262-63, 90 S.Ct. 1017-18.
III.
The interests to be balanced in cases involving Louisiana's public bid law are the interest of a particular bidder in receiving the contract versus the public interest in having the contract awarded expeditiously to the bidder who can most economically perform the work in a responsible manner.
We find that a reconciliation of these interests requires at least the following procedural safeguards before a low bidder is disqualified as not responsible:
(1) An awarding authority which intends to disqualify a bidder must, prior to the award of the contract, give the bidder formal notice in writing that the authority is considering disqualifying the bidder from competing for the contract. This notice should specify the reasons for the proposed disqualification. The notification should contain specific language which puts the bidder on notice that the authority is considering disqualification, not mere questions about the bidder's past performance on state contracts or its ability to perform in the future.
(2) The bidder must be given the opportunity to respond to the charges in writing and, in all cases in which feasible, the bidder should have the opportunity to meet with officials of the awarding authority to discuss the charges against the bidder and his response thereto. This informal "hearing" does not necessarily include the right to call witnesses or cross-examine the persons who initiated the charges of irresponsibility.
(3) After this informal hearing, but before the award of the contract, the awarding authority must give the bidder formal written notice he has been disqualified from competing for the contract. This notice should list the specific reasons upon which the disqualification is based, although it may do so by reference to or incorporation of charges contained in the original notice.
(4) The "records" of this disqualification proceeding must be preserved so as to form the basis for any subsequent judicial review which might be sought by the bidder. (This post-rejection judicial review, with the retroactive relief affordable, sufficiently protects the low bidder's private interest against arbitrary rejection of its bid in the letting of the contract to a higher bidder.)
IV.
We now turn to a consideration of whether Haughton was afforded the procedural safeguards set out above.
The facts are undisputed that Haughton was the lowest bidder on all nine contracts advertised in the spring of 1977. However, Haughton was disqualified by the awarding agency as not being a "responsible" bidder under La.R.S. 38:2211 et seq. and was denied the award of any contract.
The Division of Administration concluded that Haughton was not the lowest "responsible" bidder based on its performance of a previous elevator maintenance contract *1167 which Haughton had with the State at Charity Hospital in New Orleans. During the Charity contract, which covered approximately forty elevators, an inspection was conducted for the Department of Health and Human Resources in September, 1976 by a consulting engineer. This engineer was accompanied by representatives of the Otis Elevator Company, which was the manufacturer of the elevators and which had the maintenance contract on the elevator from the time of their installation until 1974 when Haughton won the maintenance contract[5] for a period which (with optional renewal) ended in December 1976.
It is disputed whether Haughton had a fair opportunity to participate in the Charity inspection or to rebut the unfavorable report which resulted therefrom.
The court of appeal concluded that Haughton was informed of the inspection, was given an opportunity to participate, and was given the chance to rebut the contents of the unfavorable report. 359 So.2d at 694. As did the dissenting judge on that court, we conclude to the contrary.
Haughton was apparently informed of the inspection on the morning of the inspection. However, because a responsible party was not present in the office at the time of the notification of the inspection, Haughton did not participate in the inspection. Nevertheless, participation by Haughton in the inspection itself is not the crucial issue here.
The more important dispositive issues are whether Haughton was given adequate notice of the unfavorable report which resulted from the inspection, and whether Haughton was given a fair opportunity to rebut the findings.
The record does not indicate that the Division of Administration ever directed a copy of the consulting engineer's report to Haughton after the September inspection. Haughton got notice of the report's unfavorable evaluation of the service only indirectly as a result of an Otis employee who was on the inspection team giving a copy to the Director of Traffic at Charity Hospital who in turn gave a copy of the report to Haughton in October, 1976.
Upon receipt of the report, Haughton sent a letter of rebuttal to the Director of Traffic at Charity. There is no indication in the record that this letter was ever forwarded to the Division of Administration, which subsequently was the agency which disqualified Haughton. There is also no indication that Haughton ever received any formal response regarding its rebuttal.
Subsequent to the September 1976 inspection, the original Haughton contract on the Charity elevators expired. Through agreement with the Division of Administration, its service contract was extended until June 30, 1977. (On this date, new contracts were to be entered into for elevator services at Charity as well as the other eight contracts in dispute here.) Also, in January, 1977 the Division of Administration awarded Haughton a service contract on the elevators at the Charity Hospital School of Nursing for the period ending June 30, 1977.
From May 24, 1977 through June 21, 1977 bids on nine public building elevator maintenance and service contracts were opened. Haughton was the low bidder on all of the contracts, including those for Charity Hospital and the School of Nursing.
In June, 1977 the consulting engineer for the Division of Administration conducted another inspection of the elevators at Charity. On July 1, 1977, a meeting was held in the office of the Division of Administration to discuss the awarding of the nine contracts.
A representative of Haughton was present for the last part of this meeting, but he had no prior notice of the meeting or its purpose and no opportunity to rebut the allegations against his firm prior to the agency decision to disqualify Haughton. *1168 At this meeting, the Haughton representative was informed that Haughton was disqualified on all nine contracts based on its poor service on the Charity elevators. This disqualification came only after it had been determined that Haughton was the low bidder on all nine of the contracts to be let for the 1977-1978 fiscal year.
V.
We find that Haughton did not receive fair notice of the grounds for disqualification prior to the agency's decision to disqualify it, nor was it given a fair opportunity to rebut the unfavorable report.
At no time prior to the actual disqualification on July 1, 1977 was Haughton informed that the Division of Administration was considering that it be disqualified from bidding on any elevator service contracts. Haughton did receive a copy of the consulting engineer's September report, which pointed out alleged deficiencies in the service being rendered by Haughton at Charity; but this report contained no language which put Haughton on notice that the Division of Administration was considering disqualification of Haughton from competing on future contracts.
Even if the second-hand information received by Haughton were considered adequate notice of the possible disqualification, there is no indication that Haughton had a fair opportunity to respond to the charges of irresponsibility. Haughton did send a rebuttal letter to the Director of Traffic at Charity Hospital that pointed out the reasons for Haughton's belief that it was in good faith compliance with its contractual obligation; but there is no indication that this rebuttal letter was ever forwarded to the Division of Administration, or, more importantly, whether the Division of Administration considered this rebuttal letter in reaching its conclusion to disqualify Haughton.
As stated by the dissenting opinion in the court of appeal, after deficiencies were found in the September inspection, Haughton's response was received without comment or further action. Additional contracts were awarded to Haughton. Through the administrative inaction after the September report and the awarding of further contracts, Haughton was reasonably led to believe that it had satisfactorily explained its performance at Charity Hospital. However, it was informed only after it had submitted the lowest bids that it was disqualified from receiving future contracts.
We conclude, therefore, that Haughton was not afforded the minimum procedural due process required to protect its statutory property rights and that the previous courts erred in refusing to enjoin the defendant agency from awarding the contracts to any other bidder than Haughton, the low bidder.
VI.
Under the jurisprudence (see I above), the low bidder is entitled to appropriate relief if his low bid is arbitrarily rejected and the contract is awarded to another bidder. The relief awarded has included an injunction against the agency's entering into a contract with another bidder or the annulment of the contract awarded to the other bidder.
Certain factors in the present case have given us some concern as to the appropriate decree. These mainly arise from the silence of the record as to what occurred after the hearing on the rule for preliminary injunction held in July, 1977, after which a preliminary injunction was denied. According to the record, at that time the agency had not awarded the contracts, and each contract was being operated on a month to month basis until the courts determined the issue. Tr. 62.
However, the contracts were to be let for the fiscal year beginning July 1, 1977; this period has now expired.
In spite of the possible suggestion that the issue is moot, we ultimately determine that on the basis of the present record, the injunction should issue, with its consequent holding that the agency was not authorized to enter into contracts with other bidders than Haughton, the low bidder. Since such other contracts (if entered into) are an illegal deprivation of the plaintiff Haughton's property right, we are unable *1169 to say that Haughton is not entitled to some relief.
This is especially so, since the action sought further relief on the merits, whereas the interlocutory hearing concerned only a preliminary injunction sought to preserve the status quo until the trial on the merits.[6] In its interlocutory ruling which denied the preliminary injunction, the trial court specifically noted that its decision was not intended to dispose of the litigation on its merits (see footnote 1).
Here, for instance, although the prayer sought only injunctive relief as the final judgment on the merits (i. e., as well as the interlocutory relief sought by way of temporary restraining order and preliminary injunction), the petition might be supplemented [7] to claim damages[8] from the awarding authority, if it wrongfully awarded the contract to another bidder, or even perhaps from a higher bidder who wrongfully received the contract.[9]
Under the record before us, therefore, Haughton is entitled to the temporary injunctive relief prayed for, with what consequence as the law determines is appropriate under the facts which may have developed subsequent to the trial on the rule below. To do otherwise, would foreclose Haughton from obtaining its day in court as to appropriate relief it may obtain, if any, should the contract have been wrongfully awarded to another bidder despite its own low bid.
Decree
For the foregoing reasons, the judgments of the previous courts denying the plaintiff a preliminary injunction are reversed, and the case is remanded to the district court with instructions that it issue a preliminary injunction restraining, enjoining, and prohibiting the defendant Division of Administration *1170 or any person acting on its behalf from awarding the elevator and service contracts at issue to any person, firm, or corporation other than the plaintiff Haughton Elevator Division, the low bidder on such contracts. The defendant is to pay all costs of these preliminary-injunction proceedings in accordance with law; all other costs to await assessment on final termination of this litigation.
REVERSED AND REMANDED.
SUMMERS, C. J., dissents and assigns reasons.
BLANCHE, J., not participating.
SUMMERS, Justice (dissenting).
The question here is whether the Division of Administration of the State of Louisiana reasonably and fairly rejected the low bids of Haughton Elevator Division, Reliance Electric Corp., submitted in response to advertisement in accordance with the Louisiana Public Contracts Law.
The pertinent part of the Public Contracts Law provided at that time that all public work to be done by any public corporation or political subdivision of the state (exceeding certain sums) to be paid out of public funds shall be advertised and let by contract to the "lowest responsible bidder", who has bid according to the contract. La. Rev.Stat. 38:2211, now 38:2212.
Haughton has sued the State of Louisiana, Division of Administration seeking an injunction to restrain the Division of Administration from awarding certain elevator maintenance and service contracts to others. It is alleged that as a result of advertisements for bids Haughton was the lowest bidder, and the action of the Division of Administration in disqualifying Haughton was contrary to the Public Contracts Law because Haughton was the lowest responsible bidder.
On the strength of these allegations the trial judge issued a temporary restraining order enjoining and prohibiting the awarding of the elevator maintenance and service contracts in question. Then, upon trial of the rule for a preliminary injunction, the temporary restraining order was dissolved and the trial judge denied a preliminary injunction. On Haughton's appeal to the First Circuit the judgment of the trial court was affirmed. Certiorari was granted on Haughton's application. 362 So. 2d 576.
Haughton is engaged in the business of manufacturing, installing and servicing passenger and freight elevators and escalators. Prior to June 25, 1974 the State advertised for bids on an elevator maintenance and service contract for 44 elevators at Charity Hospital in New Orleans. These elevators had been manufactured and installed by Otis Elevator Company and, until then, had been maintained and serviced by Otis. At the formal bid opening held on June 25, 1974 by the Division of Administration Haughton was the lowest bidder, and the contract was awarded to Haughton on December 16, 1974 for a term of one year with an option to renew for one year at the discretion of the Division of Administration if the services were satisfactory. After one year the State exercised its option and renewed the contract for an additional year through December 1976. In the meantime Haughton was awarded the elevator maintenance service contract on the Nurses' Home.
Prior to June 1977 the Division of Administration advertised for bids for the elevator maintenance and service contract for Charity Hospital of Louisiana in New Orleans and for the School of Nursing of Charity Hospital. The contracts were for the fiscal year beginning July 1, 1977. When the bids were opened on June 21, 1977 Haughton was the low bidder on the hospital contract. Otis Elevator was the only other bidder. Haughton was the only bidder on the School of Nursing contract. Haughton also bid on a number of other elevator maintenance and service contracts for the fiscal year beginning July 1, 1977.
On July 1, 1977 Haughton's representative was advised that its performance under the Charity Hospital contract had been unsatisfactory and Haughton was disqualified from all contracts presently pending in which Haughton was low bidder. All Haughton's contracts were then cancelled.
*1171 Sometime in 1976, prior to the December 1976 expiration of Haughton's contract, the State decided that a statewide survey of all elevator maintenance contracts and problems was necessary. While this survey was in progress, all elevator maintenance contracts were extended on a month-to-month basis, including Haughton's Charity Hospital contract.
To carry out this survey Lee Fournet, an engineer with the Department of Health and Human Resources, was directed by the Division of Administration to inspect every elevator in the state system. The purpose of the survey was to determine the quality of elevator maintenance under existing elevator maintenance contracts. To accomplish this assignment Fournet enlisted the assistance of Otis Elevator Company representatives and representatives of Tri State Elevator Company. In connection with the survey Fournet prepared a report in writing.
A written report of an on-site visit to Charity Hospital on September 1, 1976 was introduced into evidence by the State without objection by Haughton. Photographs taken of the elevators and its components and appurtenances involved in the maintenance contract are also in evidence without objection.
Generally, the report set forth, all equipment, including hoistways, pits, machine rooms and cars were dirty. Hoist ropes were rusty and some needed replacement. Governor ropes were extremely oily and covered with dirt and lint. Brake and governor pins were rusted. The governor for elevator No. 8 was frozen, preventing the fly-weights from moving and rendering the safety inoperative. All main elevator hoistway doors are out of proper adjustment and do not achieve full opening. Many doors create noises because they rattle. Cars do not level properly (either too high or too low). Door operators have worn parts, dirty and rusted chains, leaking gear boxes and worn deflector sheaves; generally they are improperly adjusted. Several door operator supports are broken or had missing bolts.
There were many frayed control wires and leads on controllers and selectors. Wiring is improperly run on controllers, selectors, and signal panels. Numerous exciter and generator sets have severe grooving or communicators which will require turning and undercutting to correct in many cases, especially in the Nurses' Home. The few wiring diagrams found at the building do not match the diagram numbers stamped on the data plates. Most machine rooms were void of spare parts as outlined in the contract specifications. Several car floors were worn and should be replaced. Door safety edges, on several cars, are badly worn and should be replaced. Signs of excessive oil leaks are evident in both the geared and gearless machines. Several field coils on main elevator motors are loose.
Insulation for the field coil is missing from the elevators in the Nurses' Home.
All elevators are tagged with safety tags dated from November 1969 to December 1969, indicating that these units have not been safety tested according to Section 1001 of the Safety Code for Elevators and according to paragraph (f) page 4 of specifications.
Most of the selectors have cotter pins and washers missing, allowing excessive movement of various parts. Some selector tapes appeared to be rusting. Several switch boxes were uncovered and almost every car had switch collars missing in car control panels.
In the outpatient clinic, the car top hatches were removed. Ark deflectors were missing on the control board and one car was inoperative.
The freight elevator in the warehouse was in deplorable condition, most doors had been malfunctioning or were inoperative for at least three weeks prior to the inspection date. The door operator chain was missing on two landings, although this elevator is required to be serviced once a week. To a large extent, the photographs in evidence support the findings in the report.
The report concluded that the inspection reflected neglect of service and maintenance and that major components had been *1172 allowed to deteriorate. Safety checks had not been made within the past seven years. The safety of the elevators at the time was questionable.
The report recommended that the elevators be repaired and placed under strict service in full compliance with the specifications and the Elevator Code.
Every effort should be made to restore the elevators and maintain them in "like new" condition. A multi-story operational hospital like Charity must depend upon elevators for its delivery system of patients, food, medical supplies, linen, staff and other essentials, the report concluded.
Upon receipt of a copy of the report Haughton replied on November 11, 1976 that the conditions pointed out were long existing and inherent with elevators of 20 to 40 years vintage. Most of the deficiencies pointed out in the report were present when Haughton took over the service, and there had been no deterioration, according to Haughton.
At the time of this written response, Haughton complained that Fournet was assisted by three employees of Otis Elevator Company, Haughton competitors. Complaint was made also that Otis was provided with a copy of the report and Haughton was not. Finally, Haughton charged that Fournet's report was biased in favor of Otis.
Otherwise Haughton answered the report, conceding that cleanliness could be improved and asserting, generally, that the deficiencies were present when they became responsible for maintenance and service. Otis, their predecessor who had the maintenance and service contract and who had manufactured and installed the elevators, was charged with the responsibility for the deficiencies.
As stated in Haughton's brief the sole issue to be decided is whether the action of the State was arbitrary in determining that Haughton was not "the lowest responsible bidder" within the contemplation of Section 2211 of Title 38 of the Revised Statutes.
Although it is Haughton's position that the sufficiency of the evidence to support Haughton's disqualification is not at issue, I am of the opinion it does present an issue and this subject will be discussed hereafter.
It was error Haughton argues, under procedures applicable to the Public Contracts Laws, for the State through its administrative agency, the Division of Administration, to fail to give Haughton adequate notice and an opportunity to rebut the unfavorable charges against them. As lowest bidder Haughton contends it was entitled to these considerations prior to being disqualified.
Haughton contends that it should have been notified of the complaints from Charity Hospital prior to the morning of the inspection. This argument is without merit. I believe the State is entitled to make unannounced inspections of contract performance without notifying the party who is responsible for performance. There is no reason to advise the contractor in advance in order that he may, as some would be prone to do, attempt to cover up the deficiencies which have existed. The State had the right to conduct what Haughton terms a clandestine investigation, and there is no statute which denies this right. If Haughton's performance had been according to its contract obligations I cannot see why they would object to a surprise inspection.
Nor do I believe, as Haughton argues, that the State improperly enlisted the aid of Otis representatives in its investigation. Because the elevators had been manufactured and installed by Otis, they were the logical people to inspect them and suggest the quality of the maintenance and service under Haughton's contract. Any person qualified to inspect the elevators would in all probability be a competitor of Haughton. There is no evidence in this record which would impugn the credibility of Otis or support a claim of undue influence on the part of their representatives. The charge of bias is unfounded.
Another objection to the procedure adopted by the Division of Administration is advanced by Haughton. They properly represent that the Division of Administration did not furnish them with a copy of Fournet's report of his on the site inspection of Charity Hospital. A copy of the report *1173 submitted some time prior to October 1976 was in the hands of Haughton's representative prior to November 11, 1976 for on that day Haughton submitted its lengthy and detailed response to the findings in Fournet's report.
In all fairness the Division of Administration should have furnished Haughton with a copy. However, a copy was obtained by Haughton from its contact at Charity Hospital, who had received a copy from an Otis representative. The copy of the report was received in ample time before the date for awarding contracts to enable Haughton to justify its position, which it attempted to do. The justification was considered inadequate by the Division of Administration and the record supports its determination. The deficiencies noted in Fournet's report were still present at the time Haughton was declared disqualified on July 1, 1977.
As the contentions are understood, Haughton also complains that at the time its representative was called into the meeting on July 1, 1977 when the decision was made to disqualify them, their representative was faced with a "fait accompli."
Haughton had from October 1976 until July 1, 1977 to remedy the deficiencies in its contract performance and to convince the awarding authorities of its responsibility as a bidder on the contract for the fiscal year 1977 by improving its performance on the existing contract. Their complaint that their representative was not permitted to advance their position on July 1, 1977 comes too late.
A public body has the right to take into consideration a number of factors in deciding who is the "lowest responsible bidder." The term "responsible bidder" is not limited in its meaning to financial resources and ability. What the public wants is quality performance of public contracts. Public authorities, therefore, are invested with discretionary powers to pass upon the honesty and integrity of the bidder, qualities which are essential to the faithful performance of the contract; upon the bidder's skill and business judgment; upon his experience and facilities for carrying out the contract; previous conduct under other contracts; and the quality of previous work; as well as the bidder's pecuniary ability. When that discretion is properly exercised the courts will not interfere. Housing Authority of Opelousas, La. v. Pittman Construction Co., 264 F.2d 695 (5th Cir. 1959); 64 Am.Jur.2d, Public Works and Contracts, § 70.
The Public Contracts Law of Louisiana is prohibitory in character. Its enactment is designed to advance the interest of the taxpaying citizen. Smith v. Town of Vinton, 216 La. 9, 43 So. 2d 18 (1949). The statute means that the lowest bidder must have the contract if he is a responsible bidder. Highway Co. v. Police Jury, 158 La. 294, 103 So. 819 (1925). This court stated the principle applicable to the case at bar in St. Landry Lumber Co. v. Mayor and Board, 155 La. 892, 99 So. 687 (1924):
"We agree with counsel for defendant that the responsibility of the bidder is to be determined, not alone by his financial ability to perform the work, but that his experience and reputation for satisfactory work are of equal importance."
Because of this last quoted principle, I find that, contrary to Haughton's position, the sufficiency of the evidence establishing the grounds for its disqualification is relevant and material. That evidence has to do with the State's experience with Haughton on other contracts, particularly the maintenance and service of Charity Hospital. That experience has an important bearing on the responsibility of Haughton's bid. It was to avoid another like experience that the State disqualified Haughton and, I agree, properly so.
There has been no abuse of the discretion vested in the State in disqualifying Haughton.
I respectfully dissent.
NOTES
[1] The trial court stated that its denial of the preliminary injunction "has nothing to do with any subsequent trial on the merits of the case."
[2] In brief in this court, the state agency has indicated its intention to award the nine contracts to the second lowest bidder.
[3] For example, if within the proper exercise of its discretion the awarding authority determines that no contract will be let, under the terms of the statute the bidders have no protected interest in the award of a contract that requires notice, hearing, and reasons for rejection.
[4] For a general discussion of the right to a hearing, see Davis, Administrative Law of the Seventies, Chapter 7, (1976).
[5] It should be noted that Otis would subsequently be in competition with Haughton for renewal of the Charity contracts as well as for the other contracts awarded for the fiscal year 1977-1978 which are the subject of this dispute. We do not today pass on the serious issue of the propriety of utilizing the services of a competing bidder to investigate possible irregularities in the service provided by the bidder sought to be disqualified.
[6] A preliminary injunction is a procedural device interlocutory in nature designed to preserve the existing status pending a trial of the issues on the merits of the case, La.C.Civ.P. art. 3601. Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, 290 So. 2d 312 (La. 1974), Ridge Park v. Police Jury of Jefferson Parish, 210 La. 351, 27 So. 2d 128 (1946).
Of course, there is often no need for a subsequent trial on the merits after there has been a full hearing on the issue when summary rule for the preliminary injunction is tried. However, unless the parties have agreed otherwise, see State ex rel. Guste v. City of New Orleans, 363 So. 2d 678 (La.1978), cf. Borgnemouth Realty Co. v. Gulf Soap Corporation, 211 La. 255, 29 So. 2d 841 (1947), the case is determined on its merits only after a full trial under ordinary process. Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, 290 So. 2d 312 (La.1974); Baton Rouge Cigarette Service, Inc. v. Bloomenstiel, 88 So. 2d 742 (La. App. 1st Cir. 1956).
[7] See La.C.Civ.P. art. 1155: "The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein."
[8] A private person is liable for damages (here, apparently the loss of profits) to repair the injury caused by the breach of a duty owed by contract, La.Civ.C. art. 1934, or by his fault for which he is delictually responsible, La.Civ.C. art. 2315. By the 1974 state constitution, a governmental entity is not immune "from suit and liability in contract or for injury to person or property." Art. 12, Section 10. At least arguably, the wrongful conduct of its employees makes the state liable for damages in the same manner as would be a private corporation for the wrongful acts of its employees which violated a duty owed to a person thereby injured.
[9] It appears doubtful to us that a higher bidder should be held liable for damages, if the contract is improperly awarded to it by a governmental agency (unless perhaps it participated in the commission of the wrongful act, La. Civ.C. art. 2324).
Nevertheless, in the single incident we could find where after the agency had improperly rejected a lower bid, the contract was actually performed by the higher bidder, the contract was nevertheless annulled, Housing Authority of Opelousas v. Pittman Construction Co., 264 F.2d 665 (U.S.Ct.App. 5th Cir. 1959), and the successful (higher) bidder was denied recovery on the contract price and allowed only costs incurred by him, without any allowance of profits. Marquette v. Housing Authority of Opelousas, 157 So. 2d 374 (La.App. 3d Cir. 1962). There, however (unlike the present situation), the higher bidder was a party to the original suit which declared the contract null as awarded in violation of the public contract law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1532388/ | 383 B.R. 156 (2008)
In re VALLEY HEALTH SYSTEM, a California Local Health Care District, Debtor.
No. 6:07-BK-18293-PC.
United States Bankruptcy Court, C.D. California, Riverside Division.
February 20, 2008.
*157 Gary E. Klausner, Esq., H. Alexander Fisch, Esq., Stutman, Treister & Glatt, PC, Los Angeles, CA, for Debtor, Valley Health Care System, a California Local Health Care District.
William P. Smith, Esq., Nathan F. Coco, Esq., McDermott, Will & Emery LLP, Chicago, IL, for U.S. Bank National Association, as Indenture Trustee for the holders of Valley Health System Certificates of Participation (1993 Refunding Project) and Valley Health System District Revenue Bonds (Refunding and Improvements Project) 1996 Series A.
Christian L. Raisner, Esq., Weinberg, Roger & Rosenfeld, Alameda, CA, for SEIU-United Healthcare Workers West & Local 121 RN.
Leonard M. Shulman, Esq., Mark Bradshaw, Esq., Shulman Hodges & Bastian LLP, Foothill Ranch, CA, for Hemet Community Medical Group, Inc.
Allan H. Ickowitz, Esq., Nossaman, Guthner, Knox & Elliott, LLP, Los Angeles, CA, for Kaiser Foundation Hospitals.
Michael S. Winsten, Esq., Winsten Law Group, Laguna Niguel, CA, for Devida Renal Treatment Center.
*158 MEMORANDUM DECISION
PETER H. CARROLL, Bankruptcy Judge.
U.S. Bank National Association, as Indenture Trustee for the holders of the Valley Health System Certificates of Participation (1993 Refunding Project) and the Valley Health System District Revenue Bonds (Refunding and Improvements Project) 1996 Series A ("U.S.Bank"), and SEIU-United Healthcare Workers West and Local 121 RN (collectively, the "Unions") object to the petition filed by Valley Health System (the "District") under chapter 9 of the Bankruptcy Code.[1] The following appearances were entered at the hearing: Gary E. Klausner and H. Alexander Fisch for the District; William P. Smith and Nathan F. Coco for U.S. Bank; Christian L. Raisner for the Unions; Leonard M. Shulman and Mark Bradshaw for Hemet Community Medical Group, Inc. ("HCMG"); Allan Ickowitz for Kaiser Foundation Health; and Michael S. Winsten for Devida Renal Treatment Center. The court, having considered the objections and the District's response thereto, HCMG's comments, the evidentiary record, and arguments of counsel, makes the following findings of fact and conclusions of law[2] pursuant to Fed.R.Civ.P. 52, as incorporated into Fed. R. Bankr.P. 7052 and made applicable to contested matters by Fed. R. Bankr.P. 9014(c).
I. STATEMENT OF FACTS
The District is a public agency formed in 1946 under the State of California Local Healthcare District Law.[3] The District encompasses 882 square miles in the San Jacinto Valley in Riverside County, California, and serves a population within the District of nearly 360,000. At its inception, the District operated only an, 18-bed hospital purchased from the city of Hemet, California. It now owns and operates the Hemet Valley HealthCare Center (the "Nursing Facility"), a 113-bed skilled nursing facility in Hemet, California, together with three acute hospitals-Hemet Valley Medical Center ("Hemet Hospital"), a 340-bed facility in Hemet, California; Menifee Valley Medical Center ("Menifee Hospital"), an 84-bed facility in Sun City, California; and Moreno Valley Community Hospital ("Moreno Valley Hospital"), a 95-bed facility in Moreno Valley, California. The Moreno Valley Hospital and its primary service area are situated outside the District's boundaries. Each of the hospitals provides comprehensive health services and 24-hour emergency medical services.[4]
*159 The cost of the District's comprehensive health care system was financed, in large part, by two series of bonds issued by the District (collectively, the "Bonds"): (1) Valley Health System Certificates of Participation (1993 Refunding Project) and (2) Valley Health System District Revenue Bonds (Refunding and Improvements Project) 1996 Series A. There was approximately $84 million in principal and interest outstanding on the Bonds as of the date of the petition.
On December 13, 2007, the District filed a voluntary petition under chapter 9 in this case disclosing not more than 5,000 creditors holding claims in excess of $100 million. In conjunction with its petition, the District filed a Statement of Qualifications Under 11 U.S.C. § 109(c) ("Statement") certifying under penalty of perjury that it was eligible to be a debtor under chapter 9. In paragraph 5 of the Statement, the District declared:
The District believes it has been unable, prior to filing its chapter 9 petition, to negotiate with creditors to reach an agreement with the holders of at lease [sic] a majority in amount of each class to be impaired under the plan of adjustment ("Plan") because such negotiation is impracticable given the numerosity of the envisaged classes to be impaired under the Plan and the holders of claims in certain of those classes.[5]
On December 17, 2007, an order was entered directing notice of the commencement of the case, approving the form of the notice, and setting a deadline of January 17, 2008, for filing objections to the petition.[6] On January 16, 2008, U.S. Bank timely filed an objection to the District's petition asserting that the District is ineligible for relief under chapter 9. U.S. Bank seeks dismissal of the petition on the grounds that the District has failed to establish that negotiation of an adjustment of its debt prior to the filing of the petition *160 was impracticable as required by § 109(c)(5)(C). In its limited objection filed on January 17, 2008, the Unions do not question the District's eligibility to be a chapter 9 debtor nor its good faith in filing the petition, but simply ask that "the Court reject any premise that the bankruptcy resulted from the existence of the [collective bargaining agreement] or the District obligations to [Valley Health System] workers.[7]
On February 1, 2008, the District filed a reply to the objections of U.S. Bank and the Unions arguing that negotiations with its creditors prior to the filing of the petition would have been not only impracticable, but pointless given the liquidity crisis that threatened the District's continued operations and its inability to formulate a viable business plan upon which a meaningful plan of adjustment could be structured prior to the petition date. On February 4, 2008, HCMG, an unsecured creditor holding claims of approximately $4.5 million, filed a response stating that it did not support a dismissal of the petition and requested that the court set a deadline for the filing of a plan pursuant to § 941. On February 7, 2008, the court conducted a hearing on the objections at which time the Unions conceded that they were not seeking dismissal of the District's petition. At the conclusion of the hearing, the matter was taken under submission.
II. DISCUSSION
This court has jurisdiction over this contested matter pursuant to 28 U.S.C. §§ 157(a) and 1334(b). This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (O). Venue is appropriate in this court. 28 U.S.C. § 1409(a).
Section 921(c) states that "[a]fter any objection to the petition, the court, after notice and a hearing, may dismiss the petition if the debtor did not file the petition in good faith or if the petition does not meet the requirements of this title." 11 U.S.C. § 921(c). If the court does not dismiss the petition under § 921(c), then it must order relief under chapter 9. 11 U.S.C. § 921(d). Despite the permissive language of the statute, § 921(c) has been construed as requiring dismissal of a petition filed by a debtor who is not eligible for relief under chapter 9. In re County of Orange, 183 B.R. 594, 599 (Bankr.C.D.Cal. 1995) ("Although the language of § 921(c) is permissive, the case law indicates that § 921(c) `must be given a mandatory effect if the defect in the filing is in the debtor's eligibility to file Chapter 9.'" (citation omitted)). See generally 6 Collier on Bankruptcy ¶ 921.04[4] at 921-7 (Alan N. Resnick & Henry J. Sommer eds., 15th ed.2007) [hereinafter Collier].
To qualify for relief under chapter 9, an entity must meet the statutory criteria set forth in § 109(c) which states:
An entity may be a debtor under chapter 9 of this title if and only if such entity
(1) is a municipality;
(2) is specifically authorized, in its capacity as a municipality or by name, to be a debtor under such chapter by State law, or by a governmental officer or organization empowered by State law to authorize such entity to be a debtor under such chapter;
(3) is insolvent;
(4) desires to effect a plan to adjust such debts; and *161 (5)(A) has obtained the agreement of creditors holding at least a majority in amount of the claims of each class that such entity intends to impair under a plan in a case under such chapter;
(B) has negotiated in good faith with creditors and has failed to obtain the agreement of creditors holding at least a majority in amount of the claims of each class that such entity intends to impair under a plan in a case under such chapter;
(C) is unable to negotiate with creditors because such negotiation is impracticable; or
(D) reasonably believes that a creditor may attempt to obtain a transfer that is avoidable under section 547 of this title.
11 U.S.C. § 109(c). The burden of establishing eligibility under § 109(c) is on the debtor. See County of Orange, 183 B.R. at 599 ("The burden of proving eligibility under § 109(c) is on the party filing the petition."); In re Sullivan County Reg'l Refuse Disposal Dist., 165 B.R. 60, 72-73 (Bankr.D.N.H.1994) ("To qualify for Chapter 9 protection, the debtor must affirmatively establish it meets each of the requirements of 11 U.S.C. § 109(c). . . . ").
Neither U.S. Bank nor the Unions question specifically the District's good faith in filing the petition.[8] Nor is there an issue as to whether the District has satisfied the eligibility requirements of § 109(c)(1), (2), (3) or (4), i.e., that the District (1) is a municipality; (2) was authorized under California law to file a petition for relief under chapter 9; (3) was insolvent on the petition date; and (4) desires to effect a plan to adjust its debts. The sole issue before the court is whether the District has satisfied § 109(c)(5)(C), i.e., whether the District was "unable to negotiate with creditors" prior to the filing of the petition "because such negotiation [was] impracticable". See 11 U.S.C. § 109(c)(5)(C).
Section 109(c)(5) is intended to promote pre-petition negotiations between a municipality and its creditors concerning a plan of adjustment. The District admits that it did not engage in negotiations with its creditors regarding a plan of adjustment prior to the filing of the petition. U.S. Bank argues that the District was required by § 109(c)(5)(C) to attempt good faith negotiations with its creditors concerning the terms of a plan of adjustment before concluding that such negotiation was impracticable, citing Sullivan and In re Cottonwood Water and Sanitation Dist., 138 B.R. 973 (Bankr.D.Colo.1992). U.S. Bank reasons that § 109(c)(5) was designed by Congress to limit a municipality's access to the bankruptcy court, compel negotiation, and "protect creditors from capricious bankruptcy filings by municipalities."[9]
U.S. Bank reads Cottonwood and Sullivan far too broadly. In Cottonwood, the debtor alleged that it had negotiated in good faith with creditors but had failed to *162 secure the consent of at least a majority in amount of the claims of each class that it intended to impair under a plan of adjustment. 138 B.R. at 974. The central issue in Cottonwood was not impracticability under § 109(c)(5)(C), but whether the debtor had satisfied the requirement of § 109(c)(5)(B). Id. ("[The objectors] argue that the Debtor is not entitled to the benefit of an order for relief because it failed to comply with the provisions of section 105(c)(5)(B) of the Bankruptcy Code."). Cottonwood and its progeny stand for the proposition that a municipality seeking to establish eligibility under § 109(c)(5)(B) "must be prepared to show that it engaged in good faith negotiations with its creditors concerning the possible terms of a plan to be effected pursuant to section 941 of the Bankruptcy Code." Id. at 979; see Sullivan, 165 B.R. at 79 (concluding that the debtors "failed to meet their burden of showing that they did negotiate in good faith with regard to a plan within the meaning and purpose of § 109(c)(5)(B) of the Bankruptcy Code").
Next, U.S. Bank argues that Congress enacted § 109(c)(5)(C)'s impracticability requirement "to address the problems that very large municipalities would face in negotiating with numerous bondholders"[10] and that § 109(c)(5)(C) was intended by Congress to be applied narrowly. See Sullivan, 165 B.R. at 79 n. 55 (observing that § 105(c)(5)(C) "was enacted in 1976 during the time of an impending municipal bankruptcy filing by the City of New York and was intended to cover situations in which a very large body of creditors would render prefiling negotiations impractical"). According to U.S. Bank, a municipality should be permitted to invoke § 105(c)(5)(C) only when it has reached an impasse after extensive pre-petition negotiations with its creditors or, alternatively, when pre-petition negotiations are impracticable due to the substantial number of its creditors. Any other interpretation, says U.S. Bank, would render §§ 109(c)(5)(A) and (B) meaningless.
First, U.S. Bank attempts to circumscribe the statutory text by pointing to its legislative history. There is a "strong presumption" that plain and unambiguous statutory language expresses congressional intent. Ardestani v. INS, 502 U.S. 129, 135, 112 S. Ct. 515, 116 L. Ed. 2d 496 (1991). Where the statute's language is plain, the sole function of the courts is to enforce it according to its terms.'" United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 61 L. Ed. 442 (1917)). Any judicial inquiry into the purpose, background or legislative history of the statute is foreclosed unless a literal application of the statute produces "a result demonstrably at odds with the intentions of its drafters." Id. at 242, 109 S. Ct. 1026. Moreover, a statute written in the disjunctive is construed as setting out separate and distinct alternatives. Tillema v. Long, 253 F.3d 494, 499-500 (9th Cir.2001); Towers v. United States (In re Pac.-Att Trading Co.), 64 F.3d 1292, 1302 (9th Cir. 1995). Because § 109(c)(5) is written in the disjunctive, a debtor has four options to satisfy the requirement for negotiation: "[1] it may obtain the agreement of creditors holding a majority in amount of claims in each class [; (2)] it may show that it has negotiated with its creditors in good faith but has failed to obtain their agreement [; (3)] it may show that it is unable to negotiate with creditors because negotiation is impracticable [; or (4)] it may demonstrate that it reasonably believe[s] that a creditor may attempt to obtain a preferential transfer." *163 In re Ellicott Sch. Bldg. Auth., 150 B.R. 261, 265-66 (Bankr.D.Colo.1992). There is nothing in the language of § 109(c)(5)(C) that requires a debtor to either engage in good faith pre-petition negotiations with its creditors to an impasse or to satisfy a numerosity requirement before determining that negotiation is impracticable under the specific facts and circumstances of a case.
Congressional intent can be divined by giving the words used their ordinary meaning. United States v. LaBonte, 520 U.S. 751, 757, 117 S. Ct. 1673, 137 L. Ed. 2d 1001 (1997). "Impracticable" means "not practicable; incapable of being performed or accomplished by the means employed or at command; infeasible." Webster's New International Dictionary 1136 (3d ed.2002). In the legal context, "impracticability" is defined as "a fact or circumstance that excuses a party from performing an act, esp. a contractual duty, because (though possible) it would cause extreme and unreasonable difficulty." Black's Law Dictionary 772 (8th ed.2004). Hence, the ordinary meaning of the word "impracticable" belies any notion that the reach of § 109(c)(5)(C) is limited to the two fact situations suggested by U.S. Bank.
Second, U.S. Bank's interpretation of § 109(c)(5)(C) is not supported by the case law which suggests that creditor numerosity is not the only circumstance under which the impracticability requirement might be satisfied. "The impracticality requirement may be satisfied based on the sheer number of creditors involved." County of Orange, 183 B.R. at 607 (emphasis added); see In re Villages at Castle Rock Metro. Dist. No. 4, 145 B.R. 76, 85 (Bankr.D.Colo.1990) ("It certainly was impracticable for [debtor] to have included several hundred Series D bondholders in these conceptual discussions."). Negotiations may also be impracticable when a municipality must act to preserve its assets and a delay in filing to negotiate with creditors risks a significant loss of those assets. See County of Orange, 183 B.R. at 607-08 ("The OCIP had no time to enter into negotiations with its participants before acting to protect its portfolio assets."); see also 2 Collier ¶ 109.04[3][e][iii], at 109-35 ("[W]here it is necessary to file a chapter 9 case to preserve the assets of a municipality, delaying the filing to negotiate with creditors and risking, in the process, the assets of the municipality makes such negotiations impracticable.").
Finally, U.S. Bank's construction of § 109(c)(5)(C) is not supported by the purpose of chapter 9. Section 109(c)'s eligibility requirements "Are to be construed broadly to provide access to relief in furtherance of the Code's underlying policies." Hamilton Creek Metro. Dist. v. Bondholders Colo. Bondshares (In re Hamilton Creek Metro. Dist.), 143 F.3d 1381, 1384 (10th Cir.1998). Chapter 9 affords a municipality temporary protection from debt collection efforts so that it may establish a plan of adjustment with its creditors. Id. at 1386; In re Addison Comm. Hosp. Auth., 175 B.R. 646, 649 (Bankr.E.D.Mich.1994).
In this case, the evidence supports a finding that the District filed its chapter 9 petition in the good faith belief that it was the only means to preserve the value of its assets, continue its business operations, and facilitate continued and uninterrupted healthcare services to its patients while simultaneously developing a viable, comprehensive business plan that would provide the basis for a plan of adjustment and meaningful negotiations with all classes, including U.S. Bank and the Unions. The District did not view the requirements of chapter 9 lightly.
*164 Prior to the filing of the petition, the District communicated, with its major creditors, including U.S. Bank and the Unions, advised them of its intention to seek relief under chapter 9, and assured them that it would negotiate a plan of adjustment consistent with the requirements of chapter 9 once it developed a viable business plan. The District's Board of Directors approved the chapter 9 filing only after a public meeting, noticed in accordance with state law, at which attendees were advised of the Board's intention to file a chapter 9 petition and given the opportunity to question the Board and its professionals and to be heard on the issue. The District's decision "was made only after a careful review of all options and strategies and with the input and guidance of, consultants with expertise in healthcare restructuring, corporate counsel, bond counsel, and bankruptcy counsel."[11]
The District" had exhausted its efforts to solve its financial problems through the restructuring of debt or the sale of assets. Two years earlier, the District sought to restructure its debt through Riverside County Measure I ("Measure I") which contemplated the issuance of $485 million in general obligations bonds, secured by property tax revenues, to retire the District's special revenue bond debt, finance necessary capital improvements, and provide the District the time and capital required to return to profitability. Measure I was rejected by the voters on September 16, 2005. The District then attempted to improve its liquidity through the sale of assets. On August 8, 2007, the District approved a sale of substantially all of its assets to Select HealthCare Solutions ("Select"), subject to voter approval in accordance with California law. Select and the District further agreed that, in the event the sale was not, approved by the voters, then Select would have the opportunity to purchase the Moreno Valley Hospital from the District for $47 million. Voters rejected Riverside County Measure G ("Measure G"), which sought approval of the asset sale to Select, on November 6, 2007-37 days before the District filed its chapter 9 petition.
On October 15, 2007, the District retained QHR Consulting Services ("QHR"), a turnaround specialist, to analyze the District's operations and complex contractual relationships, stabilize the District's financial situation, and ultimately formulate a business plan to return the District to profitability. QHR examined the District's $250 million annual budget before undertaking the task of framing a meaningful plan of adjustment. Based on its preliminary findings, QHR recommended operational changes to increase the District's revenues by approximately $12 million without materially increasing expenses and to eliminate approximately $20 million in annual expenses with no degradation to the quality of the District's operations. However, QHR determined that the key to returning the District to profitability hinges upon (1) securing fee for service agreements to replace its capitation contracts; and (2) consummating a sale of the Moreno Valley Hospital.
Prior to the filing of the petition, the District derived its revenue from a complicated system of capitation and sub-capitation agreements. The District was losing money under its capitation contracts, as well as the associated capitation risk pools formed with certain physician groups. QHR estimated that the unpaid risk pool liability alone was in excess of $16 million *165 on the petition date, and no funds had been reserved for payment of these liabilities. QHR concluded that the District must negotiate fee for service agreements to replace its capitation arrangements. Since the filing of the petition, the District has renegotiated its contracts with Blue Cross, Health Net, PacifiCare (United Health Care), Secure Horizons (United Health Care), Inter Valley, Inland Empire Health. Plan, and SCAN resulting in an estimated $1.2 million per month reduction in operational losses. Because the loss of upfront capitation payments would create a significant reduction in cash flow, the District filed its chapter 9 petition to preserve the value of its assets and to facilitate a transition from the complex capitation structure to fee for service agreements without a degradation in the quality of patient care or an interruption in healthcare services.
The fate of the Moreno Valley Hospital was unknown on December 13, 2007. The Moreno Valley Hospital was generating losses of between $300,000 to $500,000 per month on the date of the petition and Select had not, pursued its opportunity to purchase the hospital from the District. Since the filing, the District has been negotiating with. Select and Kaiser Permanente for the sale of the Moreno Valley Hospital to Kaiser for more than $47 million. QHR estimates that the sale of the Moreno Valley Hospital will substantially reduce the District's operating losses, increase monthly revenues by approximately $250,000, and reduce the District's indebtedness to its bondholders by approximately $31.5 million.
Finally, the District has a substantial number of creditors. The District's petition discloses not more than 5,000 creditors holding claims in excess of $100 million. Notice of the commencement of the case was sent to 2,775 creditors and other parties in interest. QHR believes "at least eleven classes of claims would be required under any plan of adjustment."[12] Negotiation with creditors was not practicable during the 37 days following voter rejection of Measure G given the District's liquidity crisis, the number of its creditors, the risk of loss to its assets, and its resulting inability to construct a realistic plan of adjustment.
Meaningful negotiation is infeasible, if not impossible, absent a plan of adjustment predicated upon a comprehensive business plan to return a municipality to profitability. "Even if QHR had unlimited time in which to concentrate on a business plan, any plan of adjustment based thereon prior to resolving the Select issues, understanding and improving the District's operational inefficiencies, and renegotiating the District's payor relationships, would have [been] extremely speculative and of limited usefulness."[13]
III. CONCLUSION
Based upon the foregoing, the court concludes that the District was unable to negotiate with creditors prior to the filing of its chapter 9 petition in this case because negotiation was impracticable within the meaning of § 109(c)(5)(C). Accordingly, the objections of U.S. Bank and the Unions to the District's chapter 9 petition will be overruled and U.S. Bank's request for dismissal of the petition will be denied.
NOTES
[1] Unless otherwise indicated, all "Code," "chapter" and "section" references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330 after its amendment by the Bankruptcy Abuse and Consumer Prevention Act of 2005, Pub.L. 109-8, 119 Stat. 23 (2005). "Rule" references are to the Federal Rules of Bankruptcy Procedure ("Fed. R. Bankr.P."), which make applicable certain Federal Rules of Civil Procedure ("Fed. R. Civ.P.").
[2] To the extent that any finding of fact is construed to be a conclusion of law, it is hereby adopted as such. To the extent that any conclusion of law is construed to be a finding of fact, it is hereby adopted as such. The court reserves the right to make additional findings and conclusions as necessary or as may be requested by any party.
[3] Cal. Health & Safety Code § 32000, et. seq.
[4] Services offered at the Hemet Hospital include the Emory J. Cripe Radiation Therapy Treatment Center for cancer treatment; cardiac care services; inpatient and outpatient surgical services; behavioral health services; speech, physical, and occupational therapy services; and CT imaging and magnetic resonance imaging. The Menifee Hospital provides inpatient and outpatient X-ray services, including mammography, CT scan, and MRI; a critical care unit; inpatient and outpatient surgery; inpatient and outpatient laboratory services; respiratory services; physical therapy services; a joint replacement center; and cataract and retina specialty surgeries. The Moreno Valley Hospital offers inpatient medical, surgical and pediatric services; critical care, post-critical care, and telemetry units; maternity and women's services; obstetrics; inpatient and outpatient surgery; the Spine Center of Excellence program; cardiopulmonary services; and physical rehabilitation services.
[5] Statement of Qualifications Under 11 U.S.C. § 109(c), p. 2, l.1-5.
[6] Section 923 of the Code states:
There shall be given notice of the commencement of a case under this chapter, notice of an order for relief under this chapter, and notice of the dismissal of a case under this chapter. Such notice shall also be published at least once a week for three successive weeks in at least one newspaper of general circulation published within the district in which the case is commenced, and in such other newspaper having a general circulation among bond dealers and bondholders as the court designates.
11 U.S.C. § 923. On December 14, 2007, the court signed an Order (1) Directing and Approving Form of Notice, and (2) Setting Deadline for Filing Objections to District's Petition approving the District's proposed Notice of Commencement of Chapter 9 Case; Deadline for Objections to Petition; and Related Matters dated December 13, 2007 ("Notice"), and directing service of the Notice by first class mail on the United States trustee and all entities identified on the District's List of Creditors, together with publication of the Notice on at least 3 occasions in the Press Enterprise and The Bond Buyer, pursuant to § 923. The court also set a deadline of January 17, 2008, for filing objections to the petition pursuant to § 921(c) and (d). On January 23, 2008, the District filed proof of publication of the Notice in the Press Enterprise and The Bond Buyer in accordance with the court's order, together with an affidavit establishing service of the Notice by United States mail, first class mail, postage prepaid, on 2,775 creditors or other parties in interest in the case.
[7] Limited, Protective Objection of Unions to Chapter 9 Petition of Valley Health System, p. 3, l.12-14.
[8] However, the absence of good faith pre-petition negotiations is a factor that may be considered in determining whether a chapter 9 petition was filed in good faith. See 6 Collier ¶ 921.04[2], at 9/1-6 ("The facts that may be relevant in a good faith inquiry include (i) the debtor's subjective beliefs; (ii) whether the debtor's financial problems fall within the situations contemplated by chapter 9; (iii) whether the debtor filed its chapter 9; petition for reasons consistent with the purposes of chapter 9; (iv) the extent of the debtor's pre-petition negotiations, if practical; (v) the extent that alternatives to chapter 9 were considered; and (vi) the scope and nature of the debtor's financial problems." (citations omitted)).
[9] Objection of U.S. Bank as Indenture Trustee to Chapter 9 Petition of Valley Health System, p. 6, l.1-2.
[10] Id. at p. 7, l.23-24.
[11] District's Reply to Objection of U.S. Bank as Indenture Trustee and Limited Objection of SEIU-United Healthcare Workers-West and Local 121 RN to Chapter 9 Petition of Valley Health System, p. 3, l.1-3.
[12] Declaration of Hubert U. King in support of District's Reply to Objection of U.S. Bank as Indenture Trustee and Limited Objection of SEIU-United Healthcare Workers West and Local 121 RN to Chapter 9 Petition of Valley Health System, p. 26, l.27 to p. 27, l.1.
[13] Id. at p. 27, l.23 to p. 28, l.1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1715224/ | 518 S.W.2d 857 (1974)
Bobby JOHNS, Appellant,
v.
Tom JAEB, Appellee.
No. 18403.
Court of Civil Appeals of Texas, Dallas.
December 12, 1974.
*858 Michael E. Greenberg, Irving, for appellant.
Frank W. Hill, Hill, Branham & Graham, Arlington, for appellee.
GUITTARD, Justice.
In this suit to recover usury penalties, the principal question is whether defendant advanced funds to plaintiff as a loan or as a contribution to a limited partnership of which plaintiff was the general partner. The transaction was in the form of a limited partnership and an agreement of plaintiff to purchase defendant's interest in the supposed limited partnership. Since plaintiff was unconditionally obligated to repay in monthly installments the entire amount advanced plus a fixed sum, we hold that the transaction was in substance a loan. Accordingly, we reverse the summary judgment for defendant rendered by the trial court and sustain plaintiff's motion for summary judgment.
The affidavit and other documents filed in support of defendant's motion for summary *859 judgment reveal the following facts. Plaintiff needed capital funds to go into the business of selling housewares. He applied to defendant, as president of a bank, for a loan. Defendant declined to make the loan on behalf of the bank, but decided to make a personal investment in the business. After consultation with an attorney selected by defendant, the parties agreed to form a partnership with plaintiff as general partner and defendant as limited partner, and defendant agreed to contribute $5,000 to the partnership. Accordingly, the attorney prepared and on March 22, 1973, the parties signed the following papers:
(1) A certificate of limited partnership for "Metropolitan Enterprises of Grand Prairie," listing plaintiff as general partner and defendant as limited partner. The amount of defendant's contribution is listed as "$5,000," and his share of the profits is listed as "99%."
(2) An agreement whereby plaintiff agrees to purchase defendant's partnership interest, and defendant agrees to sell it, for $6,500, to be evidenced by a promissory note in that amount. Title to the partnership interest is not to pass until the note is paid in full. Among other security for the note, the agreement provides that plaintiff pledges the inventory of the business and grants a lien on the inventory, and on any after-acquired inventory, "until said debt is retired." A salary of not more than $1,000 per month is allowed to plaintiff.
(3) A promissory note in the amount of $6,500 signed by plaintiff, payable to defendant, without interest, in six monthly installments of $1,083.33 each, beginning April 30, 1973.
After plaintiff paid the first two monthly installments on the note, the enterprise proved unsuccessful and was abandoned. When defendant inquired about the situation, plaintiff admitted that he was unable to pay his bills and that his liabilities exceeded his assets by about $18,000.
In this suit for usury penalties, plaintiff alleged that the transaction was a loan for $5,000 with interest of $1,500 for six months, and that this amount was more than double the interest allowed by law. Defendant answered, alleging that he entered into a partnership with plaintiff, that his payment of $5,000 was a contribution to the capital of the partnership, and that plaintiff agreed to purchase defendant's partnership interest for $6,500. Defendant counterclaimed for the balance of $4,333.34 on the $6,500 note and for an attorney's fee. Both parties moved for summary judgment. The court overruled plaintiff's motion and sustained defendant's motion, and plaintiff appeals.
Defendant argues in support of the trial court's judgment that the documents on their face show that the transaction was a partnership rather than a loan and that no summary-judgment evidence was presented indicating that the parties intended these documents as a subterfuge to disguise a loan for greater than the lawful rate of interest. We cannot agree because we conclude that the documents on their face show that the transaction was in substance a loan rather than a true limited partnership.
When money is advanced to enable one to engage in a business venture with the understanding that the advance and an added amount are to be returned, there is a loan, and the added amount is interest, which may not exceed the statutory maximum, regardless of the form of transaction. Maxwell v. Estate of Bankston, 433 S.W.2d 229 (Tex.Civ.App.-Texarkana 1968, no writ); Campbell v. Oskey, 239 S.W. 332 (Tex.Civ.App.-El Paso 1922, no writ); see Jackson v. Cassidy, 68 Tex. 282, 4 S.W. 541, 544 (1887) and cf. Korth v. Tumlinson, 73 S.W.2d 1048, 1049 (Tex. Civ.App.-San Antonio 1934, no writ). Here the documents show an absolute obligation on the part of plaintiff to repay the amount advanced, together with an additional amount. Unlike a limited partner, defendant did not expose his $5,000 investment to the hazards of the business. His only risk was a creditor's risk that plaintiff *860 would be unable or unwilling to meet the obligation to "purchase" his interest by paying the monthly installments. The socalled "purchase price" had no relation to the actual value of the interest. If the enterprise prospered, defendant expected no benefit beyond the $6,500 which plaintiff unconditionally obligated himself to pay, and if the enterprise failed, as it did, defendant expected to receive the same amount, and could lose no part of his investment unless plaintiff was unable to pay and the inventory and other collateral provided in the agreement proved insufficient.
Defendant insists that he never intended to charge usury, but his subjective intent is immaterial, since the intent of the parties is presumed to be reflected in the documents which they signed. Southwestern Inv. Co. v. Hockley County Seed & Delinting, Inc., 511 S.W.2d 724, 732 (Tex. Civ.App.-Amarillo 1974, writ ref'd n. r. e.). Consequently, we hold that the transaction was a loan rather than a contribution to a limited partnership.
The difficulty of fitting this transaction into the limited partnership mold is demonstrated by its failure to comply with the Uniform Limited Partnership Act, Tex.Rev.Civ.Stat.Ann. art. 6132a (Vernon 1970). Section 17 of that Act provides that a limited partner shall not receive from a general partner any part of his contribution until all liabilities of the partnership, except liabilities to partners on account of their contributions, have been paid or sufficient property of the partnership remains to pay them. Here the general partner was unconditionally obligated to purchase the interest of the limited partner, and thus repay his contribution, in six monthly installments, regardless of whether the partnership could pay its obligations. This express prohibition of the Act may not be evaded by the simple device of labeling the transaction a sale of the limited partner's interest.
Also, § 14 of the Act forbids the limited partner from receiving or holding as collateral security any partnership property in respect to any claim against the partnership. By the agreement here in question, the general partner pledged to the limited partner the entire inventory of the business until the note should be paid, and granted a lien on after-acquired inventory as well.
The provision in the agreement for defendant to receive 99% of the profits until the note is paid does not support his contention that a true partnership was intended. This provision is extraordinary, and is understandable only in light of the circumstance that for the first six months of the enterprise, any expectation of profit above the $1,000 per month salary allowed to plaintiff was quite remote. Even if a profit had been realized and paid to defendant, however, it would not convert the transaction from a loan to a true partnership, since there was no corresponding expectation that the amount to be paid to defendant would be reduced by partnership losses. When the amount invested is not subject to the risk of the enterprise because the party in charge has an absolute obligation to return the funds advanced, any profits agreed to be paid to the investor must be considered compensation for the use of the money, and therefore, interest. See Campbell v. Oskey, 239 S.W. 332, 334 (Tex.Civ.App.-El Paso 1922, no writ).
Defendant also argues that the judgment is correct because the depositions and affidavits show conclusively that any possible violation of the usury law is the result of "accidental and bona fide error" within Tex.Rev.Civ.Stat.Ann. art. 5069-1.06(1) (Vernon 1971). In support of this argument he cites evidence that the parties consulted an attorney concerning the transaction and employed him to prepare the papers in question. This circumstance cannot relieve the transaction from the taint of usury. Ignorance of the usury law is not a "bona fide error" within the statute if the parties intended to make the bargain which they made. Townsend v. Adler, 510 S.W.2d 175, 176 (Tex.Civ.App.-Houston *861 [14th Dist.] 1974, no writ). There is no evidence here of an error in calculation, such as that held to be subject to reformation in Guetersloh v. C. I. T. Corp., 451 S.W.2d 759, 761 (Tex.Civ.App.-Amarillo 1970, writ ref'd n. r. e.).
Since we hold that the documents, when taken together, establish a usurious loan, the summary judgment for defendant must be reversed, and our duty under Texas Rules of Civil Procedure, rule 434 is to render the judgment which the trial court should have rendered. We conclude that the trial court should have sustained plaintiff's motion for summary judgment because usury was shown as a matter of law. Accordingly, we sustain plaintiff's motion, except with respect to plaintiff's claim for his attorney's fee, which must be determined by the trial court from the evidence as a matter of fact. Great American Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 (1966).
In rendering judgment on plaintiff's motion, we must determine the amount of usury penalties to be assessed under Tex. Rev.Civ.Stat.Ann. art. 5069-1.06 (Vernon 1971), which provides as follows:
(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.
(2) Any person who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest and all other charges and shall pay reasonable attorney fees set by the court ....
Subdivision (1) of this statute imposes a penalty of twice the amount of the interest contracted for, plus a reasonable attorney's fee. Subdivision (2) adds forfeiture of the principal as well if the interest contracted for is more than double the amount of interest allowed by law. Both penalties apply here, since the amount of interest contracted for is well in excess of twice the amount allowed by law. Interest of $1,500 for six months on a principal of $5,000 amounts to sixty per cent per annum, and the requirement of repayment in monthly installments brings it to more than one hundred per cent. Thus the amount of the penalty to be imposed here is twice the $1,500 interest ($3,000), plus the principal ($5,000), making a total of $8,000, plus a reasonable attorney's fee.
Plaintiff is not entitled to judgment for this whole sum, however, since he has paid only two installments of $1,083.33 each on the note for $6,500, leaving a balance of $4,333.34. Forfeiture of this balance is included in the penalties provided by the statute. Consequently, the amount of plaintiff's recovery here should be $8,000, less the forfeited balance of $4,333.34, leaving a net recovery of $3,666.66, plus a reasonable attorney's fee. Texas Tool Traders v. W. E. Grace Manufacturing Co., 488 S.W.2d 498, 504 (Tex.Civ. App.-Dallas 1972), modified, W. E. Grace Manufacturing Co. v. Levin, 506 S.W.2d 580, 585 (Tex.1974). Recovery of this amount puts the parties in the same position as if plaintiff had paid the entire amount of the note and were awarded recovery of twice the interest plus the principal.
Accordingly, the judgment of the trial court is reversed, and partial summary judgment is here rendered for plaintiff in the amount of $3,666.66, and against defendant on his counterclaim. The cause is remanded to the trial court for determination of the amount of a reasonable attorney's fee.
Reversed and rendered, except with respect to the claim for attorney's fee, and in that respect reversed and remanded.
*862 Costs are taxed against defendant, except the cost of including in the transcript the briefs of the parties in the trial court. Those briefs have not been helpful to us, and their inclusion is contrary to the express provision of the order of the Supreme Court dated October 3, 1972, which appears in the Texas Rules of Civil Procedure following Rule 376-a. Consequently, the cost of including those briefs is taxed against plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2408512/ | 952 S.W.2d 552 (1997)
Juan Carlos RUBALCABA a/k/a Juan Carlos Ruvalcaba, Individually and d/b/a Empresas Ruvalcaba, S.A., and Empresas Ruvalcaba, S.A., Appellants,
v.
PACIFIC/ATLANTIC CROP EXCHANGE, INC., Michael Lawrence, and Tony Browning, from El Paso, Appellees.
No. 08-95-00293-CV.
Court of Appeals of Texas, El Paso.
March 7, 1997.
Rehearing Overruled September 10, 1997.
*553 Richard B. Perrenot, Roy R. Brandys, Mayfield & Perrenot, P.C., El Paso, for Appellants.
Stephen G. Peters, Mara Asya Blatt, El Paso, for Appellees.
*554 Before BARAJAS, C.J., and McCLURE and CHEW, JJ.
OPINION
BARAJAS, Chief Justice.
This is an appeal from a default judgment rendered by the trial court against Appellants, jointly and severally, for actual damages in the amount of $126,705, and exemplary damages in the amount of $600,000. The case comes before this Court on writ of error from a default judgment. We reverse and remand in part and reverse and render in part the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
Appellant, Juan Carlos Rubalcaba, acting individually and as an agent for Empresas Ruvalcaba, called Appellee Browning, an agricultural commodities broker, and advised him that he was interested in exporting a quantity of peanuts to Mexico. Browning contacted Appellee Lawrence, another agricultural commodities broker, and through Lawrence, located the quantity of peanuts Rubalcaba had requested. Rubalcaba and Browning agreed that a trailer-load of peanuts would be shipped from western Canada to El Paso, Texas, where Empresas Ruvalcaba would pay for them and pick them up for export to Mexico. The peanuts were ultimately delivered to El Paso for a total price of $15,873.12.
After the peanuts arrived in the United States, the parties learned that United States Agriculture Department regulations required that Chinese peanuts, such as these, be shipped from Canada to Mexico by sea, rather than over land, as was erroneously done in this case by the Canadian broker, Werner Phillips. This violation of agricultural regulations placed pressure on Lawrence and Browning to get the peanuts out of the United States. Rubalcaba agreed to pick up the peanuts and get them out of the United States immediately.
Browning and Lawrence also arranged for another five trailers for a total price of $61,726.59 to be shipped, by Shah Trading Company Ltd., from eastern Canada to the Mexican port of Veracruz where Ruvalcaba would take possession of them. The Veracruz shipments were to be purchased under a method known as "cash against documents," under which, upon payment, a buyer is given necessary documents which would allow him to obtain possession of the product. The total price for this second shipment of "Veracruz" peanuts was $58,500, of which Appellees paid $13,500 in advance directly to Shah Trading Company, Ltd.
Soon after the peanuts arrived in Veracruz, Appellants reported to Appellees that the peanuts were in danger of deteriorating in the tropical heat, and requested that Appellees release them. Appellants offered to pay $39,000 of the $45,000 owed on the peanuts "simultaneously" with Appellees' release of goods. Rubalcaba sent a facsimile to Lawrence which purported to be a receipt for a wire transfer in the amount of $39,000 payable to Appellee Pacific Atlantic in partial payment for the Veracruz peanuts, this was indicated on the receipt from Banamex. Lawrence then authorized the release of the peanuts to Rubalcaba and Empresas Ruvalcaba. The record in the instant case shows that the actual wire transfer never arrived in the Pacific Atlantic account, contrary to the receipt's designated beneficiary, Pacific Atlantic Group Exchange.
Rubalcaba took possession of the Veracruz peanuts and eventually claimed that the peanuts were defective and unmarketable. Browning traveled to Mexico City, where Rubalcaba had taken the peanuts and tested them. Browning concluded that the shipment of peanuts was not defective, although he did state that there were approximately 80 bags of peanuts that were molding. Rubalcaba nonetheless continued to assert that the Veracruz peanuts were defective and refused to pay for the peanuts from El Paso because the money he had paid as a deposit on the Veracruz peanuts ($39,000) should be applied to the El Paso order.
Browning and Lawrence made arrangements to sell the Veracruz peanuts that Rubalcaba had shipped to Mexico City. However, on their arrival, they discovered that Rubalcaba had sold most of the shipment. The record establishes that Rubalcaba possessed invoices for these peanuts and was thus able to take possession of them, and *555 had the right to sell them. Appellees sold what was left at a net return to Lawrence and Pacific Atlantic for the sum of $23,975.03. Lawrence and Pacific Atlantic nonetheless were forced to make good their guarantees to their suppliers and therefore were required to pay the sum of $64,099.71 to the two suppliers for the goods acquired by Rubalcaba and Empresas Ruvalcaba.
II. DISCUSSION
The Appellants attack the trial court's default judgment with eight points of error. The Appellants bring a direct attack from a default judgment before this Court under a writ of error.
A. Jurisdiction of the Court by Writ of Error from a Default Judgment
A party bringing a writ of error constitutes a direct attack on a default judgment. Sebastian v. Braeburn Valley Homeowner's Assoc., 872 S.W.2d 40, 41 (Tex. App.Houston [1st Dist] 1994, no writ). In order to bring a writ of error to the court of appeals, a party must satisfy the following four essential elements:
(1) The writ must be brought within six months after the judgment is signed;
(2) by a party to the suit;
(3) who did not participate in the actual trial; and
(4) the error complained of must be apparent from the face of the record.
DSC Finance Corp. v. Moffitt, 815 S.W.2d 551 (Tex.1991); Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985); Brown v. McLennan County Children's Protective Services, 627 S.W.2d 390, 392 (Tex.1982).
Appellants' Point of Error Nos. One through Six deal with legal and factual sufficiency claims concerning both actual and exemplary damages. Legal and factual sufficiency of the evidence to support the judgment is an appropriate inquiry on writ of error. See Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 57 (Tex.App.San Antonio 1995, no writ); Herbert v. Greater Gulf Coast Enterprises, 915 S.W.2d 866, 870 (Tex.App.Houston [1st Dist.] 1995, no writ). Where claims of legal or factual sufficiency concern damages, in a default judgment, the appellant is entitled to review of the evidence produced. Transport Concepts, Inc. v. Reeves, 748 S.W.2d 302 (Tex.App. Dallas 1988, no writ), citing Rogers v. Rogers, 561 S.W.2d 172, 173-74 (Tex.1978).
We hold that Appellants meet the essential requirements for bringing a writ of error following a default judgment, and consequently, this Court has jurisdiction to entertain this action.
B. Fraud and Exemplary Damages
In Point of Error No. Eight, Appellants assert that the trial court erred in finding that Appellants committed fraud, thus entitling Appellees to exemplary damages because Appellees' actions were in substance for breach of contract and could not support recovery of exemplary damages. In Points of Error Nos. Four, Five and Six, Appellants claim the trial court erred in awarding exemplary damages to Appellees, Michael Lawrence, Pacific/Atlantic Crop Exchange, Inc., and Tony Browning in the total amount of $200,000 each because no evidence was offered in support of such damages. We agree.
We note at the outset that exemplary damages are not admitted by default. Sunrizon Homes Inc. v. Fuller, 747 S.W.2d 530, 534 (Tex.App.San Antonio 1988, writ denied). In the instant case, the only tort Appellants are alleged to have committed is fraud, and absent the required proof to establish fraud, Appellees are left with only a claim for breach of contract. Exemplary damages cannot be recovered in an action for breach of contract. Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.1986); Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 745 (Tex.1986); Hamilton v. Texas Oil & Gas Corp., 648 S.W.2d 316, 324 (Tex.App.El Paso 1982, writ ref'd n.r.e.).
The elements of fraud are:
(1) A material misrepresentation,
(2) which was false, and
(3) which was either known to be false when made or was asserted without knowledge of its truth,
*556 (4) which was intended to be acted upon,
(5) which was relied upon, and
(6) which caused injury.
Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281, 282 (Tex.1994); DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990); State National Bank of El Paso v. Farah Mfg. Co., 678 S.W.2d 661, 668 (Tex. App.El Paso 1984, writ dism'd agr.); Warner Communications, Inc. v. Keller 888 S.W.2d 586, 595 (Tex.App.El Paso 1994, no writ).
In the Appellees' original petition filed below, they allege a cause of action for fraud and breach of contract. While Appellees are correct that a no-answer default judgment operates as an admission of all material facts alleged in the plaintiffs' petition, such is the case only in instances where facts have been properly pled. UNL Inc. v. Oak Hills Photo Finishing, Inc. et al, 733 S.W.2d 402, 407 (Tex.App.San Antonio 1987, no writ), citing Stoner v. Thompson, 578 S.W.2d 679 (Tex.1979). In order to prevail on the actionable fraud cause of action, Appellees must satisfy all elements of the tort. Allen v. Allen, 751 S.W.2d 567, 574 (Tex.App.Houston [14th Dist.] 1988, writ denied); Stephanz v. Laird, 846 S.W.2d 895, 903 (Tex.App.Houston [1st Dist.] 1993, writ denied). Fraud is never presumed, and when it is alleged, the facts sustaining it must be clearly shown. Stephanz, 846 S.W.2d at 903.
In accordance with the above cases, all the elements of fraud and all facts constituting fraud must be properly pleaded to satisfy an allegation of fraud. As previously stated by this Court in El Paso Development Co. v. Ravel, in a common-law action based on fraud, all the elements of fraud must be alleged and proven, if a judgment in favor of plaintiff is to be supported. El Paso Development Co. v. Ravel, 339 S.W.2d 360, 367 (Tex.Civ.App.El Paso 1960, writ ref'd n.r.e.). As said by the Texas Supreme Court, "Merely to characterize an act as fraudulent does not make it a good allegation of fraud.... No amount of mere denunciating of it as a fraud could make it so. The facts constituting the fraud must be alleged." Baines v. Mensing, 75 Tex. 200, 12 S.W. 984, 985 (Tex.1889). On appeal, Appellees have identified those material facts adduced at trial which purportedly establish fraud and which originated from allegations in their original petition as well as the deposition of Michael Lawrence which was introduced at trial. We address those factual allegations.
The first allegation is premised on the fact that Rubalcaba faxed a fraudulent receipt for a wire transfer to Lawrence in order to induce him to release the Veracruz peanuts. We find this to be a mere conclusory statement not satisfying the elements of fraud. The Appellees do not show, and did not prove at trial, that the alleged fraudulent facsimile was either known to be false when it was made or was asserted without knowledge of its truth. Although Appellees describe the receipt for the wire transfer as "fraudulent," we find no evidence of this in the record before this Court. The copy of the receipt, which is actually an order for payment is exactly what it purports to be. The designated beneficiary is Pacific Atlantic Group Exchange and the directed bank is Wells Fargo Bank National. There is no evidence from the record that this was fraudulently made or fraudulently sent. When Lawrence was questioned as to what happened to the wire transfer, he said that Rubalcaba had indicated to him that Rubalcaba's bank had inadvertently sent the money to an account in Houston. If true, Appellants have no control over the errors of Banamex, and he certainly has no direction when it comes to sending out wire transfers from Banamex. There is no evidence that the wire transfer is fraudulent as Appellees' claim. In addition, when Lawrence was questioned by his counsel as to the wire transfer, he answered, "I have no idea if it was ever sent." This response leaves open the possibility that the transfer very well could have been sent, although to the wrong bank, without the knowledge of Lawrence. We find these statements to be insufficient to establish the fact that Appellants faxed a fraudulent receipt for a wire transfer.
Appellees' second assertion of fraud is founded on Rubalcaba's statement that the receipt was evidence he had already transferred *557 $39,000 into the Pacific/Atlantic account. According to Lawrence's deposition introduced at trial, Rubalcaba told him that he had made a deposit of $39,000 to Banamex with instructions to wire that amount to Pacific/Atlantic account at Wells Fargo Bank. We find no evidence of fraud insofar as this is exactly what the wire transfer order says. The record establishes that Rubalcaba even made it a point to call Lawrence after he sent the fax and Lawrence said, "Yes, I have it." There is no evidence to show this was fraudulent conduct on the part of Rubalcaba.
Appellees' third allegation of fraud concerns the releasing of the peanuts by Lawrence only after he received the fax and Rubalcaba's assurances that the funds had been wired and would not have released the peanuts otherwise. While the above does establish Lawrence's reliance on the fax and Rubalcaba's statements, it does not establish that the fax or Rubalcaba's assurances were fraudulent.
The fourth fact of fraud Appellees rely on is the statement by Lawrence in his deposition, introduced in its entirety at trial, that the money from the wire transfer was never transferred to the Pacific/Atlantic account. While it is apparent that the funds were not received as instructed in the payment order, it does not prove that the funds were not sent. Rubalcaba correctly made the payment order with Pacific/Atlantic as the beneficiary and designated bank as Wells Fargo. The mere fact that the funds did not credit the Pacific/Atlantic account does establish fraud. Rubalcaba stated to Lawrence that Banamex inadvertently sent the money to an account in Houston. Lawrence made a feeble attempt to locate the funds by asking their bank to trace it. Lawrence's bank told him that it would have to be traced through the main bank and the record is silent as to whether Lawrence made any further inquires. Lawrence's deposition also stated that he said, "I have no idea if it was ever sent." We find that the above fails to establish fraud as alleged.
The fifth fact of Appellants' "fraudulent" conduct is the act of Pacific/Atlantic releasing the goods upon receiving evidence that a wire transfer had been sent because it sometimes took up to two days for the money to actually arrive in Pacific/Atlantic's accounts. While this does establish the necessary element of reliance, it does not establish fraud insofar as the evidence establishes that Appellants were not in control of the time period that it takes for funds to be transferred from one bank to another.
The sixth allegation of fraud is founded on the claim that if Lawrence had not released the peanuts to Rubalcaba, they could have been returned to the supplier and there would have been no cost to anyone except Appellants. While the above certainly establishes that there likely was a expense to someone other than Appellants, it fails to establish any requisite element of fraud.
The seventh item Appellees' claim demonstrates fraud on the part of Appellants is that Rubalcaba claimed that the peanuts were defective and unmarketable, although tests proved they were not defective. Nevertheless, the record shows that Appellants continued to sell the peanuts without paying for them. We find this first statement not to be entirely accurate. Lawrence testified that the bulk of the peanuts were not defective, but he also testified that there might have been 80 bags with mold damage. Additionally, Browning testified that there were a few bags that were molding, but that the vast bulk of the product was in good condition. Given the above, Appellees have failed to show that Rubalcaba's "claim" was false, or that Appellees relied on anything "claimed" by Rubalcaba.
The second statement of Appellees that Appellants continued to sell the peanuts does not prove any element of fraud. Although Pacific/Atlantic's invoice for these peanuts specifies "cash against documents", Lawrence testified that the documents had been given to Rubalcaba. Since Appellants had the documents, he was able to take possession of the peanuts, and he had the right to sell them. In fact, Appellants told Lawrence that even though the peanuts were defective, he would look through the lot and see if there was anything he could keep. Given the above, Lawrence should not have been surprised when Appellants continued to sell the peanuts. Neither of Appellants two statements *558 establish fraud; moreover, even if Appellants did fail to pay for the peanuts, this failure may have established a cause of action for breach of contract, rather than fraud.
The final assertion advanced to establish Appellees' cause of action is the promise by Rubalcaba to pay for the El Paso peanuts within two days, although he apparently had no intention of paying for them. We disagree. The record shows that Rubalcaba told Lawrence he would wire the money to Appellees "right away" and Lawrence understood this to mean two days. Even if the interpretation that Lawrence understood was correct, we find no evidence of fraud. Failure to perform a future act is fraud only when there is no intent to perform the act at the time the representation is made. Schindler v. Austwell Farmers Coop., 841 S.W.2d 853, 854 (Tex.1992); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992); Stanfield v. O'Boyle, 462 S.W.2d 270, 272 (Tex.1971); Figueroa v. West, 902 S.W.2d 701, 707 (Tex.App.El Paso 1995, no writ). The failure to perform a future act is alone no evidence of fraudulent intent. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986); Figueroa, 902 S.W.2d at 707. Appellees, in their original petition below, do not allege the requisite intent on the part of Appellants to establish fraud, and further, Appellees failed to offer any evidence at trial proving Appellants intent at the time of making the statement. Moreover, Appellees have not alleged any reliance on Appellants' purported promise. Lawrence testified that the United States Department of Agriculture advised him to get the peanuts out of the country fast. When Lawrence told Rubalcaba of this, Rubalcaba offered to pick up the peanuts "right away" in order to help him with this ordeal. We find no fraud in the above statements made by Appellants.
In addition, Appellees have failed to establish fraud and have produced no evidence at trial to sustain such finding of fraud. Given the above, Appellees have failed in their attempt to establish fraud, and consequently, exemplary damages cannot be awarded. Exemplary damages cannot be recovered in an action for breach of contract. Jim Walter Homes, Inc., 711 S.W.2d at 618; Bellefonte Underwriters Ins. Co., 704 S.W.2d at 745; Hamilton, 648 S.W.2d at 324. Accordingly, Points of Error Nos. Four, Five, Six, and Eight are sustained, and the trial court's decision awarding exemplary damages to Appellees is reversed and such claims are rendered in favor of Appellants.
C. Damages for Mental Anguish, Loss of Business Reputation and Breach of Contract
In the instant case, the trial court awarded actual damages to each Appellee which consisted of the sum of actual contractual damages, mental anguish and loss of business reputation. As noted above, Appellees failed to properly plead their fraud claim nor did they introduce any evidence at trial to succeed on their fraud claim. Appellees were consequently left with their claim for breach of contract and damages resulting from such breach. Exemplary damages cannot be recovered in an action for breach of contract. Jim Walter Homes, Inc., 711 S.W.2d at 618; Bellefonte Underwriters Ins. Co., 704 S.W.2d at 745; Hamilton, 648 S.W.2d at 324.
The trial court awarded actual damages for mental anguish. As a general rule, mental anguish is not an element of damages that may be recovered in an action either for breach of contract or for a tort founded on a right growing out of a breach of contract. Hallmark v. Hand, 885 S.W.2d 471, 481 (Tex. App.El Paso 1994, writ denied); Bohatch v. Butler & Binion, 905 S.W.2d 597, 606 (Tex.App.Houston [14th Dist.] 1995, writ denied); Comstock Silversmiths, Inc., 894 S.W.2d at 58; Myrtle Springs Reverted Indep. Sch. Dist. v. Hogan, 705 S.W.2d 707, 710 (Tex.App.Texarkana 1985, writ ref'd n.r.e.), cert. denied, 480 U.S. 906, 107 S. Ct. 1350, 94 L. Ed. 2d 520 (1987); see Mead v. Johnson Group, Inc., 615 S.W.2d 685, 687 (Tex.1981); Otten v. Snowden, 550 S.W.2d 758, 759-60 (Tex.Civ.App.San Antonio 1977, no writ); Rogowicz v. Taylor and Gray, Inc., 498 S.W.2d 352 (Tex.Civ.App.Tyler 1973, writ ref'd n.r.e.); see City of Dallas v. Brown, 150 S.W.2d 129, 131 (Tex.Civ.App.Dallas 1941, writ dism'd); White Sewing Mach. Co. v. Lindsay, 14 S.W.2d 311 (Tex.Civ.App.Galveston 1929, writ dism'd); Dunn v. Wilkerson, *559 203 S.W. 59 (Tex.Civ.App.San Antonio 1918, no writ).
Finally, we note that the trial court awarded damages for loss of business reputation. Loss of business reputation is not an element of damages recoverable for breach of contract. See Sterling Projects Inc. v. Fields, 530 S.W.2d 602 (Tex.Civ.App.Waco 1975, no writ); Streetman v. Lasater, 185 S.W. 930 (Tex.Civ.App.El Paso 1916, no writ); Nelson v. Data Terminal Systems, Inc., 762 S.W.2d 744, 748 (Tex.App.San Antonio 1988, writ denied). Although Appellees may have suffered actual damages relating to the breach of contract, damages for loss of business reputation and mental anguish cannot be recovered; consequently, the actual damages awarded to Appellees must be modified to account only for damages caused by such breach of contract.
D. Actual Damages
In Points of Error Nos. One, Two, and Three, Appellants state the trial court erred in rendering judgment in favor of Appellees Lawrence, Pacific/Atlantic Crop Exchange Inc., and Browning in the amounts of $48,750, $36,898, and $41,057, respectively. In Point of Error No. Seven, Appellants state the trial court erred in rendering judgment in favor of Appellees, Lawrence and Pacific/Atlantic Crop Exchange Inc., against Appellants, jointly and severally, for actual damages in the sum of $48,750, for the reason that this amount was in excess of the damages specifically pleaded in the original petition.[1] Evidence was introduced at trial establishing actual damages; however, the testimony did not show, and the default judgment did not specifically itemize what damages were attributed to the breach of contract, fraud, mental anguish, and loss of business.[2] Because of the preceding analysis concerning the sufficiency of Appellees' claim for fraud, this Court is unable to determine what amount of the actual damages the trial court awarded for either the fraud claim, and related loss of business reputation and mental anguish, or the breach of contract claim.
We agree with the Appellants that the trial court erred in failing to find the proper amount of actual damages. We reverse the portion of the trial court judgment which pertains to actual damages suffered by the Appellees and remand the case to the trial court for a determination of the amount of actual damages which are attributed to Appellees' breach of contract claim.
Appellants' Points of Error Nos. Four, Five, Six, and Eight are sustained. We reverse the judgment of the trial court and render that Appellees take nothing in that the Appellees have failed to prove their cause of action for fraud as well as the subsequent award of punitive damages. We sustain Appellants' Points of Error Nos. One, Two, Three, and Seven. We reverse the portion of the trial court's judgment pertaining to actual damages suffered by the Appellees and remand the case to the trial court for a determination of the amount of actual damages which are attributed to Appellees' breach of contract claim.
NOTES
[1] The amount of $39,961.61 was plead by Appellees in their original petition as the total actual damages suffered by Appellees Michael Lawrence and Pacific/Atlantic Crop Exchange, Inc.
[2] The record shows the manner in which damages were awarded by the trial court. The trial court said, "All right. The court will find that there has been proven a breach of contract and in the alternative, there has also been proven a fraud on the part of the defendant in this case. The court will award actual damages as set out in the testimony and in the deposition and in regard to the fraud claim, the Court is also going to award the maximum amount of exemplary damages that can be awarded. If you will fill out the numbers and let me take a look at it, I will sign your judgment." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2060104/ | 307 N.E.2d 867 (1974)
Nell E. MIMS, Appellant,
v.
COMMERCIAL CREDIT CORPORATION, Appellee.
No. 374S57.
Supreme Court of Indiana.
March 13, 1974.
Rehearing Denied April 25, 1974.
David F. Shadel and David S. Walker, Indianapolis, for appellant.
Steven H. Ancel, Indianapolis, for appellee.
HUNTER, Justice.
This case raises serious questions concerning garnishment proceedings in Indiana. We have accordingly granted transfer in order to address these questions and *868 to delineate procedures which we believe to be most consistent with principles of equity and justice. Although we, in effect, adopt a legal position favorable to appellant, we seriously question appellant counsel's motives in perfecting this appeal. This matter will be discussed in greater detail below, along with the issues presented for review.
Plaintiff-Appellee obtained a money judgment against the defendant-appellant for her default upon a retail installment sales contract. Appellee, subsequent to judgment, sought and obtained a garnishment order in proceedings supplemental to execution. Subsequent to the overruling of appellant's motion to correct errors, appellant filed her notice of appeal and her motion to proceed as a poor person, in the trial court. Her motion was duly granted. In support of said motion, appellant filed an affidavit which reads in part as follows:
"That her net weekly average wages and income is approximately fifty-seven dollars ($57.00) and that all of this amount is necessary to support herself, her husband (who is no longer employed) and their three (3) minor children and to provide them with the basic necessities of life."
The Court of Appeals, Second District, affirmed the judgment of the trial court.
The following issues are raised by the appellant:
1. Whether the UCCC garnishment exemption (IC 1971, 24-4.5-5-105 (Ind. Ann. Stat. § 19-25-105 [1973 Supp.])) repealed the resident-householder exemption. (IC 1971, 34-2-28-1 (Ind. Ann. Stat. § 2-3501 [1968 Repl.]))
2. If the resident-householder exemption is operative, whether the burden rests on the debtor-defendant to claim said exemption.
The trial court entered the garnishment order pursuant to the UCCC exemption provision. That provision establishes maximum amounts a creditor can reach through garnishment of weekly wages. The formula provides that the first $48.00 of an individual's disposable earnings (net weekly income) is exempted, but that 25% of all disposable earnings in excess of $48.00 can be reached. The UCCC, in effect, allows all debtor-defendants a basic exemption by setting a garnishment ceiling. The resident-householder exemption, on the other hand, allows only a particular class of debtor-defendant an exemption.
In order to qualify for the resident-householder exemption, two basic requirements must be satisfied. First, the debtor-defendant's resident householder status must be established. Second, the debtor-defendant's indebtedness must arise out of a contractual obligation. Once these prerequisites are met, the debtor-defendant is entitled to exempt 90% of all net weekly income in excess of $15.00. The first $15.00 is totally exempt.
After examining the statutes in question, we believe that the UCCC neither expressly nor impliedly repealed the resident-householder exemption. The UCCC contains no general repealing clause nor is the resident-householder exemption specifically repealed. The authorities are legion in their disapproval of repeal by implication. The doctrine of implied repeal should only be resorted to in those instances where two statutes irreconcilably conflict. Medias et al. v. City of Indpls. (1939), 216 Ind. 155, 23 N.E.2d 590. We are unable to perceive any such incurable repugnancy. On the contrary, we view the UCCC garnishment formula and resident-householder exemption as complementary approaches to the garnishment of wages; statutes pari materia.
A debtor-defendant, who satisfies the resident-householder requirement and whose indebtedness flows from a contractual breach, should have the protection of whichever garnishment exemption results in the least amount of garnished income. *869 The UCCC provides that no garnishment may exceed 25% of all disposable weekly earnings in excess of $48.00. Of course, there will be instances when the UCCC formula should (and must) be employed in determining a bona fide resident-householder's weekly garnishable income. The UCCC commands this result. In fact, the case at bar represents such an instance. The aforequoted affidavit states that the appellant's net weekly earnings are approximately $57.00. Based on the UCCC computation (the computation utilized by the trial court), the appellant's garnishable income is $2.25 per week. If, however, the resident-householder exemption is applied, $4.20 per week would be deducted from her weekly wages. Therefore, it would appear that the trial court correctly assessed and applied the appropriate law of garnishment in this case.
In the face of the above mathematical reality, appellant's counsel seeks a reversal of the garnishment order entered by the trial court. It is this apparent anomaly which has caused us to question the sincerity, or at least the motives, of counsel in instituting this appeal. Lawyers are charged with the duty to zealously represent their client within the bounds of the law. Canon 7, Code of Professional Responsibility. Counsel, in this case, appears to be more concerned with obtaining a definitive statement of the law than with furthering the interests of his client. In fact, if we were to reverse the garnishment order and instruct the trial court to enter another order pursuant to the resident-householder exemption, the appellant would be substantially damaged.
The Court of Appeals held that the resident-householder exemption must be asserted by the claimant at an appropriate time during proceedings supplemental.[1] Since, in this case, no such affirmative claim was interposed by the appellant at the appropriate time, the Court of Appeals concluded that the trial court had acted properly. The Court based its holding on a careful analysis of existing statutory and decision-at law.[2] This Court is of the opinion that the Court of Appeals correctly ascertained the general rule regarding the claiming of garnishment exemptions, although the case law is less than clear. However, we do believe that this general rule should admit of exceptions and modifications consistent with fairness and practical realities.
Garnishment exemption statutes in Indiana have constitutional underpinnings. Article 1, Section 22 Exemption Imprisonment for debt provides that foundation:
"The privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted ..."
It is not without significance that Article 1 enumerates the Bill of Rights. A debtor, in Indiana, has a constitutional right to have a reasonable amount of his or her property exempted from garnishment. Garnishment exemptions merely implement that right.
In order to preserve the integrity of garnishment exemptions and insure full enjoyment of a constitutional right, we prescribe the following procedure:
If a debtor-defendant is represented by counsel during proceedings supplemental, the burden is upon the debtor to affirmatively interpose the resident-householder claim. This, of course, is the general rule cited by the Court of Appeals. If, however, *870 a debtor-defendant is not represented by counsel, the trial court must determine: (1) whether the debtor is a resident-householder, and (2) if the debtor is a resident-householder, which exemption (either the UCCC or resident-householder) would be least burdensome on the debtor. The trial court, after due consideration of these matters, shall enter the appropriate garnishment order, being always mindful of the fact that the amoung garnished shall never exceed 25% of disposable weekly earnings in excess of $48.00.
For all the foregoing reasons, transfer is hereby granted and the judgment of the trial court is affirmed.
ARTERBURN, C.J., and GIVAN and PRENTICE, JJ., concur.
DeBRULER, J., concurs in result.
NOTES
[1] During the proceedings supplemental, appellant failed to introduce any evidence relating to her financial condition. The aforequoted affidavit was filed subsequent to the garnishment order.
[2] The Court of Appeals acknowledged the fact that the cases upon which it relied involved real and personal property exemptions and not exemption of wages from garnishment. However, we believe the analogy is analytically sound. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326583/ | Lemire, James R., J.
The plaintiffs, Paul and Sandra Abdella (“Abdellas”), filed this action against an oil company that spilled oil in the Abdellas’ basement and various contractors and subcontractors hired to reme-diate the spill. The Abdellas claim that the defendants acted unfairly and deceptively in failing to complete or in improperly completing the work that each undertook. For the reasons that follow, the defendants’ motions to dismiss are ALLOWED.
BACKGROUND
The facts, taken as true from the complaint and viewed in the light most favorable to the Abdellas, are as follows. On January 15,2004, defendant Harris Oil, Inc. (“Harris Oil”) released oil into the Abdellas’ basement during a deliveiy to their residence in North Oxford, Massachusetts. The Abdellas initiated a lawsuit in Middlesex Superior Court against Harris Oil and the remediation contractor it hired, defendant Hydro Environmental Technologies Inc. (“Hydro Environmental”) 3, 4 The parties to the Middlesex Superior Court action entered into a settlement agreement dated August 2, 2007 (“Settlement Agreement”), whereby the Abdellas agreed to dismiss their complaint in the Middlesex Superior Court action in return for a total of $310,000.00 and a complete remediation of their property.5, 6 Pursuant to the Settlement Agreement, the Abdellas signed a release dated August 4, 2007 (“Release”).7 The Release provides the following:
The [Abdellas] ... do hereby release, acquit and forever discharge Hydro Environmental Technologies, Inc. and . . . Harris Oil, Inc . . . and their, or its agents, servants, successors, heirs, executors, administrators and all other persons, corporations, firms, associations or partnerships, contractors, subcontractors, associates, members, directors, stockholders, officers, agents, servants, attorneys, employees, personable and legal representatives, and their successors and assigns ... of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the [Abdellas] now have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from all disputes relating to any breach of contract, personal injuiy, negligence, any claim arising out of M.G.L. Ch. 93A or M.G.L. Ch. 176D, [ ] or any other claim that [the Abdellas] now ha[ve], will have or ever had more especially on account of any loss or damage allegedly sustained by reason of the release of oil which occurred on or about January 15, 2004 and subsequent remediation, which are the subject of [the two Superior Court actions], whether or not such claims are known, suspected, patent or latent, in tort, contract, indemnity, contribution, negli*645gence, or whether or not they arise under M.G.L. Ch. 93A or M.G.L. Ch. 176D, or on any other theoiy, whether at law [or] in equity and whether or not such claims or any of the underlying events upon which they may be based have yet arisen or occurred.
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The [Abdellas] further declare and represent that no promise, inducements or agreement not herein expressed has been made to [them] . . .
The [Abdellas] acknowledge that they have had the benefit of, or the opportunity to consult with legal counsel to review the terms and conditions of this release and have signed their names hereto voluntarily and of their own free act and deed.
Harris Oil hired Hydro Environmental as a contractor and subcontractor to perform work required under the Settlement Agreement. Hydro Environmental, in turn, hired defendants Seibold Plumbing and Heating, Inc. (“Seibold Plumbing”), GV Engineering, LLC (“GV Engineering”), TMC Services, Inc. (“TMC Services”), and Pioneer Oil Company, Inc. (“Pioneer Oil”) (collectively, “subcontractor defendants”) to perform specific services at the Abdellas’ property. The Abdellas allege that Harris Oil and Hydro Environmental failed to perform all of their obligations under the Settlement Agreement, and that the subcontractor defendants performed their services negligently.
DISCUSSION
I. Motion to Dismiss Standard
When evaluating the legal sufficiency of a complaint pursuant to Mass.RCiv.P. 12(b)(6), the court accepts as true all of the factual allegations of the complaint, and draws all reasonable inferences from the complaint in favor of the plaintiff. See Nader v. Citron, 372 Mass. 96, 98 (1977), abrogated on other grounds by Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008). To survive a motion to dismiss, a complaint must set forth the basis for the plaintiffs entitlement to relief with “more than labels and conclusions.” Iannacchino, 451 Mass. at 636, quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007). While factual allegations need not be detailed, they “must be enough to 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. At the pleading stage, Mass.R.Civ.P. 12(b)(6) requires that the complaint set forth “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief . . .” Id., quoting Bell Atl Corp., 550 U.S. at 557.
II. Analysis
In their respective motions to dismiss, the defendants cite the Release as a bar to the Abdellas’ claims. The Abdellas argue that the Release is invalid as to claims not existing at the time of the Release’s execution, i.e., the claims they now bring, because it was intended to cover only the underlying Superior Court actions and because “a release of a future demand, not then in existence, is void.” Hastings v. Dickinson, 7 Mass. 153, 155 (1810). The court agrees that the Release controls here and prohibits the Abdellas’ claims.8
At the outset, the court notes that “Massachusetts law favors the enforcement of releases.” Sharon v. Newton, 437 Mass. 99, 105 (2002). The Abdellas’ argument that the Release’s signatories intended it to apply only to the underlying court actions is belied by the language of the Release. It provides that the Abdellas release Harris Oil and Hydro Environmental, and their contractors and subcontractors,
of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever ... or any other claim that [the Abdellas] now ha[ve], will have or ever had more especially on account of any loss or damage allegedly sustained by reason of the release of oil which occurred on or about January 15, 2004 and subsequent remediation, which are the subject of [the two Superior Court actions.]
Courts have interpreted such releases, i.e., broad language followed by the identification of a specific matter, to be general releases encompassing any and all claims. See Eck v. Godbout, 444 Mass. 724, 728 (2005), citing Glendale Coal Co. v. Nesson, 312 Mass. 293, 294 (1942).9 “If the parties intended that there be limitations or exceptions to the scope of the release[ ], then they should have so stated.” Atlas Tack Corp. v. Crosby, 41 Mass.App.Ct. 429, 433 (1996).
As for the Abdellas’ argument that the Release does not include “future” claims that were unknown at the time they signed the document, more recent caselaw has held differently than Hastings. It is now recognized that “a right which has not yet arisen . . . may be released.” Cormier v. Central Mass. Chapter of Nat’l Safety Council, 416 Mass. 286, 288 (1993) (citation omitted); see also Atlas Tack Corp., 41 Mass.App.Ct. at 432-33 (releases “written in the broadest, most general terms . . . encompass liability for all claims and causes of action, including the possibility of future liability”). Thus, where the Release explicitly includes claims that the Abdellas “now have or which may hereafter accrue” due to “any and all known and unknown” harm, including claims arising out of the oil spill “whether or not such claims are known, suspected, patent or latent,” it encompasses claims that the Abdellas may not have known about when they signed the Release. See Leblanc v. Friedman, 438 Mass. 592, 597 (2003) (no dispute about parties’ intention regarding temporal scope of release where it included claims both “known and unknown”); see also Eck, 444 Mass. at 728 (“[BJroad wording in the release operates to settle all other, unrelated matters, even if *646they were not specifically in the parties’ minds at the time the release was executed”).
Finally, the court notes that the Abdellas do not allege that they were induced to sign the Release by fraud, deceit, or any other wrongful conduct, or that they did not have the opportunity to read the Release. See Cormier, 416 Mass. at 288, 289. Indeed, the Release specifically states that the Abdellas “declare and represent that no promise, inducements or agreement not herein expressed has been made to [them]” and that they “have signed their names hereto voluntarily and of their own free act and deed.” Further, in signing the Release, the Abdellas “acknowledge^] that they have had the benefit of, or the opportunity to consult with legal counsel to review the terms and conditions of this release."
ORDER
Based on the foregoing, it is hereby ORDERED that the motions to dismiss of Harris Oil, Hydro Environmental, Seibold Plumbing, GV Engineering, TMC Services, and Pioneer Oil be ALLOWED.
The Abdellas also sued one of Hydro Environmental's Licensed Site Professionals, who worked on the remediation of the Abdellas’ house. He is not a party to the current lawsuit.
information about the Middlesex Superior Court lawsuit comes from the complaint in that action, which one of the defendants attached to their motion to dismiss here. Because that complaint is a record from another judicial proceeding in the Superior Court, this court may consider it though it is outside the pleadings. See Reliance Ins. Co. v. Boston, 71 Mass.App.Ct. 550, 555 (2008).
The Abdellas also agreed to dismiss a complaint they filed in Worcester Superior Court, which alleged violations of G.L.c. 93A by Harris Oil and its insurer.
The Abdellas attached a copy of the Settlement Agreement to their complaint, and the court’s consideration of the document is therefore permissible under Mass.R.Civ.P. 12(b)(6). See Reliance Ins. Co., 71 Mass.App.Ct. at 555.
The Abdellas attached a copy of the Release to their complaint. See supra note 6.
Each of the defendants asks the court to award fees and costs pursuant to G.L.c. 231, §6F. That statute requires that the court make “a separate and distinct finding” after a hearing that the Abdellas’ claims “were wholly insubstantial, frivolous and not advanced in good faith.” Given that the court will dismiss all of the Abdellas’ claims, the defendants may seek such a hearing before the court.
As the Eck court stated,
It is a common expression used in releases to identify the specific dispute that motivated the parties to enter into the release, and to make clear that claims stemming from that dispute are being released, but it is not intended to limit the generality of any prior, broad description of the full extent of claims being released.
444 Mass. at 729 (emphasis added). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2109907/ | 57 Ill. 2d 318 (1974)
312 N.E.2d 252
LA SALLE NATIONAL BANK, Trustee, Appellant,
v.
THE COUNTY OF COOK et al., Appellees. OAK PARK TRUST AND SAVINGS BANK, Trustee, Appellant,
v.
THE COUNTY OF COOK et al., Appellees.
Nos. 45988, 46139 cons.
Supreme Court of Illinois.
Opinion filed May 29, 1974.
*319 Hackbert, Rooks, Pitts, Fullagar and Poust, of Chicago (Alan S. Ganz, of counsel), for appellants.
Bernard Carey, State's Attorney, of Chicago (Sheldon Gardner, Chief of Civil Division, and Henry A. Hauser, Assistant State's Attorney, of counsel), for appellee County of Cook.
James A. Ronan, of Chicago (Gerald W. Shea, of counsel), for appellee Forest Preserve District of Cook County.
McLaughlin, Kinser & Bryant, of Chicago (Harry L. Kinser and Edward J. McLaughlin, of counsel), for appellee the Suburban Cook County Tuberculosis Sanitarium District.
*320 Allen S. Lavin, of Chicago (Frederick M. Feldman and Vincent P. Flood, of counsel), for appellee Metropolitan Sanitary District of Greater Chicago.
Judgments affirmed.
MR. JUSTICE RYAN delivered the opinion of the court:
Plaintiff, La Salle National Bank, as trustee under a land trust, filed five separate suits in the circuit court of Cook County. Four of the suits were filed as class actions. These each name certain taxing units and taxing officials of Cook County as defendants and seek injunctive relief and a refund of taxes which the complaints allege are based on excessive assessments. Each complaint also seeks a declaratory judgment declaring certain assessment procedures invalid. The fifth suit was not brought as a class action and seeks only an injunction prohibiting defendants from assessing, levying, collecting or distributing certain real estate taxes. These five suits were consolidated in the trial court and were dismissed on motion of the defendants.
Plaintiff, Oak Park Trust and Savings Bank, as trustee under a land trust, represented by the same attorney who represented the La Salle National Bank in the five cases mentioned above, filed a complaint in five counts in the circuit court of Cook County. Three of the counts are class actions and two counts seek relief for the individual plaintiff. The complaint challenges the validity of certain assessment procedures and seeks an injunction prohibiting the assessing, levying, collecting or distributing of certain taxes computed on an assessment in excess of an amount contended for by the plaintiff. Count V prays for a declaration that the rules and regulations used in the assessment procedures are invalid. On motion of the defendants the trial court also dismissed all counts of this suit. The issues raised in the cases filed by the La Salle National Bank and those raised in the case filed by the Oak Park Trust and Savings Bank are substantially the same. The *321 primary difference between the La Salle National Bank cases and the Oak Park Trust and Savings Bank case is found in the different classes purportedly represented. The La Salle National Bank, as trustee, appealed from the order dismissing the five suits and the Oak Park Trust and Savings Bank, as trustee, appealed from the order dismissing the five counts of its complaint. The appeals were transferred to this court pursuant to Rule 302(b) (50 Ill.2d R. 302(b)) and consolidated here for argument and opinion.
Pursuant to section 43 of the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, par. 524), Cook County has been divided into four assessment districts for purposes of real estate tax assessments. The districts are numbered 1, 2, 3 and 4 and are referred to as quadrants. The quadrennial assessment of real estate is made in a different year in each district or quadrant. The validity of this method of making quadrennial assessments of real estate in Cook County has been upheld by this court in Apex Motor Fuel Co. v. Barrett, 20 Ill. 2d 395. Both plaintiffs own real estate classified by the assessor of Cook County as "Class 93/Industrial." The property is located in quadrant 1, for which the quadrennial assessment was made in 1972.
Some of the defendants which are taxing districts filed motions which allege that the plaintiffs did not have authority as land trustees to institute the actions. However, the motions filed by the defendants who are taxing officials do not challenge the authority of the two banks to institute the suits. It is apparent that the dismissals in the trial court were not based on the lack of the plaintiffs' authority to sue. For purposes of this motion we will treat the plaintiffs as having the authority to institute the actions.
Since our disposition of this appeal affirms the judgment of the circuit court for the reasons set forth later in the opinion, it is unnecessary for us to determine *322 whether these suits are proper class actions. It is also not necessary for us to decide whether all of the taxing districts of the county must be made defendants. The latter contention has been advanced because, it is urged, certain relief prayed in the complaint would adversely affect the taxes levied by every taxing district in Cook County.
Since both injunctive relief and declaratory judgment are sought, we must consider whether the same rules which may prohibit injunctive relief likewise operate to prevent relief under the declaratory judgment statute (Ill. Rev. Stat. 1971, ch. 110, par. 57.1). A general principle of equity prohibits injunctive relief if the plaintiff has an adequate remedy at law. (See 7 Ill. Law & Practice, Chancery, sec. 31.) Generally the existence of another remedy does not preclude declaratory relief. (American Civil Liberties Union v. City of Chicago, 3 Ill. 2d 334.) This court has held, however, that in cases challenging the validity of a tax assessment, declaratory judgment is not a viable alternative to the statutory remedies provided by the Revenue Act. In such cases relief should not be afforded by way of declaratory judgment in cases which would not have merited relief by way of injunction. (Goodyear Tire and Rubber Co. v. Tierney, 411 Ill. 421; American Civil Liberties Union v. City of Chicago; People ex rel. Hamer v. Jones, 39 Ill. 2d 360; see also Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 87 L. Ed. 1407.) Therefore, the same principles which we hereafter hold prohibit the granting of an injunction in this case likewise prohibit granting declaratory relief.
The complaints of the plaintiffs raise a substantial number of issues, all of which relate to the assessment of the plaintiffs' properties for real estate tax purposes. Generally the contention is that the plaintiffs' properties are assessed higher than plaintiffs contend they should be. Plaintiffs also complain about the rules and procedures of both the Cook County assessor and the Cook County *323 Board of Appeals, and they contend that the statute provides for no meaningful judicial review for Cook County taxpayers, whereas judicial review is provided for taxpayers outside of the county (Ill. Rev. Stat. 1971, ch. 120, pars. 592.1 through 592.4). The plaintiffs contend that these alleged deficiencies result in a violation of their constitutional rights of due process and equal protection of the laws.
This court has often held that the taxation of property is a legislative and not a judicial function and that the courts will not review the assessments of property upon which taxes are based unless the assessments are fraudulent or constructively fraudulent. White v. Board of Appeals, 45 Ill. 2d 378; People ex rel. Nordlund v. Lans, 31 Ill. 2d 477; People ex rel. Callahan v. Gulf, Mobile and Ohio R.R. Co., 8 Ill. 2d 66; People ex rel. Tedrick v. Allied Oil Corp., 388 Ill. 219.
Recently this court in Clarendon Associates v. Korzen, 56 Ill. 2d 101, refused to allow equitable relief by way of injunction in a case of alleged constructively fraudulent assessments of real estate. We held that equity would only assume jurisdiction to enjoin the collection of taxes in cases where: (1) the tax is unauthorized by law, or (2) in cases where the tax is levied upon exempt property. In cases of fraudulent assessments we held that equity will grant relief only if an adequate remedy at law is not available. In Clarendon we held that the remedy at law provided by way of paying the taxes under protest and filing objections to the application for judgment provided an adequate remedy at law. Ill. Rev. Stat. 1971, ch. 120, pars. 675 and 716.
Our opinion in Clarendon was filed subsequent to the date the plaintiffs (appellants) filed their original briefs but prior to the date of the filing of their joint reply brief. In the reply briefs the plaintiffs' attempt to bring their cases within the two exceptions stated in Clarendon by contending that since the complaints allege that certain statutes, *324 rules and regulations relating to assessments are unconstitutional, the assessments and taxes based thereon are "unauthorized by law."
However, an examination of the five-count complaint filed by Oak Park Trust and Savings Bank reveals that this plaintiff in both the three counts that are class actions and the two counts that are brought on behalf of the plaintiff individually is simply complaining that the property has been assessed at an excessively high value. This, the complaint charges, has resulted in various deprivations of constitutional rights. These allegations do not bring this case within the ambit of the "tax unauthorized by law" exception stated in Clarendon. This court stated in Goodyear Tire and Rubber Co. v. Tierney, 411 Ill. at 428-429:
"Appellant's real complaint, as evidenced by a careful study of its brief and argument, is not that it was assessed but rather that it was assessed for too high a figure. Under the principles set forth in our earlier decisions, this case, therefore, does not involve the attempted imposition of a tax unauthorized by law * * *."
We reach the same conclusion in the present case and conclude that the plaintiff has not alleged grounds for relief by way of injunction or declaratory judgment. The legal remedy by way of payment under protest followed by objections to the application for judgment for delinquent taxes provides an adequate remedy at law wherein the alleged irregularities and violations of plaintiffs' constitutional rights may be litigated and, if warranted, relief granted. This court has held that it is proper to raise constitutional questions arising from alleged improper assessments in this manner. People ex rel. Callahan v. Gulf, Mobile and Ohio R.R. Co., 8 Ill. 2d 66, at 69; People ex rel. Ross v. Chicago, Milwaukee, St. Paul and Pacific R.R. Co., 381 Ill. 58, at 61.
*325 The same conclusion must be reached concerning four of the complaints filed by the plaintiff, La Salle National Bank. However, the fifth case, No. 72 CH 6946, which was filed by the La Salle National Bank, as trustee, individually, and on behalf of a class of persons constituting "all owners of real estate in Cook County, Illinois, owning or paying real estate taxes in Cook County, Illinois," requires further consideration. The basis for the allegations in this case is found in section 4(b) of article IX of the 1970 Illinois Constitution, which provides, insofar as pertinent to this case, as follows:
"(b) Subject to such limitations as the General Assembly may hereafter prescribe by law, counties with a population of more than 200,000 may classify or to continue to classify real property for purposes of taxation. Any such classification shall be reasonable and assessments shall be uniform within each class.
It is the plaintiff's contention that the assessment of real estate in Cook County is based upon classifications of the real estate which have been made by the county assessor and not by the Cook County Board of Commissioners. The plaintiff contends that before any classification of real estate can be made for assessment purposes some action must be taken by the board of commissioners making or authorizing such classification. Plaintiff alleges that no action in this regard was taken by the board of commissioners and that therefore the classifications of real estate in Cook County which have been made by the county assessor are invalid and all assessments based thereon are void.
The plaintiff contends that the proceedings and debates of the constitutional convention support its contention. After examining the same we come to a contrary conclusion. The Committee on Revenue and Finance, with regard to real property taxation, submitted the original proposal to the convention which provided:
*326 "Any county over 200,000 population is authorized to classify real property for taxation purposes. The General Assembly shall establish a system of classification of real property for taxation purposes, which system may be adopted by any other county * * *."
The committee's explanation for this proposal states:
"A county of more than 200,000 population may continue its present classification practices or establish a system of classification by action of the county governing board without any further approval from the General Assembly." 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2108. (Hereafter referred to as Proceedings.)
The debates on this proposal reflect that the delegates were well aware of the existing de facto classification of real estate in Cook County by the assessor and that the proposal of the Committee on Revenue and Finance would permit this practice to continue without requiring any action by the Cook County Board. To prevent this practice from continuing, an amendment was offered by Delegate Netsch which would have specifically required that any classification of real property be accomplished by the county board. (3 Proceedings 1989, 1990, 1992.) At page 1996 Delegate Netsch stated with regard to the committee's proposal:
"I am persuaded * * * that the intent of the Revenue and Finance Committee * * * was to give the counties over 200,000 directly the power to classify, and specifically in the case of Cook County to allow the classification to continue in existence as it is at the present time without any formal action by any elected authority * * *. I think the report makes it entirely clear and, in fact, the report was changed at one point to make it entirely clear that Cook County would be able to continue its assessment system without any formal action by any other body."
The Netsch amendment to the committee proposal was adopted. (3 Proceedings 1997.) Later the same day Delegate Karns proposed an amendment to the same section which amendment would strike the portion of the *327 previously amended committee proposal and substitute therefor the following:
"Taxes upon real property shall be levied uniformly by valuation which shall be ascertained in such manner as the General Assembly shall prescribe by law provide by law, provided that, subject to such limitations as the General Assembly may hereafter prescribe by law, counties may classify or continue to classify real property for purposes of taxation." (3 Proceedings 2021.)
Delegate Karns was asked by Delegate Leahy about the effect of his amendment. "Does it, in essence, just continue what we have today, subject to future restriction or expansion * * * by the General Assembly?" Delegate Karns replied: "Correct." Delegate Netsch then offered an amendment to the Karns amendment, the effect of which as Delegate Netsch stated: "What it does is to insert into Mr. Karns's language * * * the amendment that was approved earlier this morning by the convention specifying that it is the legislative authority that is, the county board of any county which may do the classification of real property under this system." Later, Delegate Netsch again stated: "The purpose, again, is to make it clear that it is the legislative authority of the county which would be vested with the responsibility for adopting a classification system on behalf of the county." (3 Proceedings 2023.) The proposed amendment offered by Delegate Netsch to the Karns amendment failed. (3 Proceedings 2024.) The Karns amendment was then adopted. 3 Proceedings 2029.
The Committee on Style, Drafting and Submission incorporated the Karns amendment into the revision of the revenue article for consideration of the convention on second reading (7 Proceedings 2234), and with slight modifications the same was incorporated into the final draft of the constitution adopted by the convention. 7 Proceedings 2736.
It appears from these proceedings that there was a diligent attempt to incorporate into section 4(b) of article IX a specific requirement that classification of real *328 property be made by the governing body of the county and not by an assessor. It is also clear that the convention was aware of the practices in Cook County, and without such a provision the language of the original proposal and of the Karns amendment would permit the continuation of these practices which permitted the Cook County assessor to classify real property for purposes of taxation. The attempt to incorporate these restrictions, though originally successful, ultimately failed.
The section as adopted provides:
"Subject to such limitations as the General Assembly may hereafter prescribe by law, counties with a population of more than 200,000 may classify or to continue to classify real property for purposes of taxation." (Ill. Const. (1970), art. IX, sec. 4(b).) (Emphasis added.)
The italicized language must be construed as authorizing the continuance of classification by the assessor in Cook County. This authority, of course, is subject to such limitation as the General Assembly may prescribe by law. The General Assembly has now prescribed limitations on this authority. Public Act 78-700 added section 20a to the Revenue Act of 1939, as follows:
"Where real property is classified for purposes of taxation in accordance with Section 4 of Article IX of the Constitution and with such other limitations as may be prescribed by law, such classification must be established by ordinance of the county board. If not so established, the classification is void." Ill. Rev. Stat. 1973, ch. 120, par. 501a.
The effective date of this act was January 1, 1974, and the amendatory act also provided: "Nothing in this Act shall be construed to impair the validity of assessments made or taxes imposed prior to the effective date of the Act."
The assessments based upon classifications of real property made by the Cook County assessor without action by the county board are valid and the complaint in No. CH 72 6946 was properly dismissed.
The plaintiffs contend that the doctrine of constructive *329 fraud, which has restricted judicial review of real estate assessments, was eliminated by the 1970 Constitution. Plaintiffs argue that, by the elimination of the language from the 1870 Constitution upon which the doctrine of constructive fraud was based, the delegates intended to authorize the review of assessments in an action in equity.
Section 1 of article IX of the Constitution of 1870 provided:
"The general assembly shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property such value to be ascertained by some person or persons, to be elected or appointed in such manner as the general assembly shall direct, and not otherwise; * * *." (Emphasis added.)
Section 4(a) of article IX of the Constitution of 1970 provides:
"Except as otherwise provided in this Section, taxes upon real property shall be levied uniformly by valuation ascertained as the General Assembly shall provide by law." (Emphasis added.)
The plaintiffs contend that by virtue of the difference in the italicized language in the two sections set out above the constitutional convention has eliminated the restrictive language of the 1870 Constitution which prohibited judicial review of assessments other than on the basis of constructive fraud. We cannot accept this argument.
Under section 4(a) of article IX of the 1970 Constitution it is the General Assembly which has the authority to determine how and by whom the valuation of the property shall be ascertained. The constitutional debates contain only slight reference to the subject of judicial review of assessments. Delegate Karns, who had submitted the proposed amendment, was asked if he would be amenable to the insertion of some phrase or clause in his amendment which would make judicial review more likely. Delegate Karns indicated he would not. The discussion further *330 indicated that judicial review under the proposed amendment would be limited to substantially the same areas that had previously been delineated by decisions of this court. (3 Proceedings 2023.) The difference in the language used in the 1970 Constitution from that used in the 1870 Constitution, which is italicized above, has not altered the scope of judicial review of real estate tax assessments.
We conclude that the circuit court of Cook County properly dismissed the complaints of the plaintiffs. The judgments of that court are affirmed.
Judgments affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2436250/ | 314 S.W.2d 295 (1958)
John D. FERRIS, Relator,
v.
Maurice I. CARLSON et al., Respondents.
No. 15488.
Court of Civil Appeals of Texas, Dallas.
June 12, 1958.
Curtis E. Hill, Dallas, for relator.
Ralph W. Currie; Currie, Kohen & Freeman, Dallas, for respondents.
DIXON, Chief Justice.
John D. Ferris, relator, complains of the Republican Executive Committee of Dallas County and Maurice Carlson and Jean A. McGee, respondents, individually and as chairman and secretary respectively of the Committee. Relator, invoking our jurisdiction under Arts. 1735a and 13.41 of the Election Code Vernon's Ann.Civ.St., filed his petition May 27, 1958 asking that we direct the Committee to place relator's name on the official ballot of the Republican Primary Election to be held July 26, 1958 as a candidate for nomination by the Republican Party for the office of Judge of the 101st. District Court of Dallas County, Texas. Relator says that the ultimate date for the printing of the ballot is June 16, 1958, so he asks that our order be made forthwith.
It appears from the record before us that on April 15, 1958 relator filed with the Committee his application to have his name placed on the ballot, and on May 5, 1958, tendered his check in the amount of $100 as his filing fee. On May 12, 1958 *296 by resolution the Committee refused to accept his application and instructed respondent Carlson, Committee Chairman, to return to relator his filing fee of $100.
The resolution adopted by the Committee contains the following recitations: "The Dallas County Republican Executive Committee makes the following Statement of Facts:
"1. The said John D. Ferris, though licensed to practice in this State, has not been a practicing lawyer or a Judge of a Court in this State or both combined, for four years next preceding the forthcoming general election.
"By reason of the foregoing the said John D. Ferris lacks the necessary qualifications prescribed by Article V, Section 7, of the Constitution of the State of Texas [Vernon's Ann.St.]. He could therefore not fill the office if he were elected thereto."
Our Constitution requires that a person must have been a practicing attorney for a period of four years next preceding the General Election in order to be eligible to hold the office of District Judge in this State. We quote from Art. V, Section 7 of the Constitution of the State of Texas: "For each district there shall be elected by the qualified voters thereof, at a General Election, a Judge * * * who shall be licensed to practice law in this State and shall have been a practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election."
Art. 1.05, Election Code V.A.C.S., expressly provides that no person ineligible to hold the office for which he desires to run, shall have his name placed on any ballot for any primary election where candidates are selected under our primary laws. And in Ferguson v. Wilcox, 119 Tex. 280, 28 S.W.2d 526 our Supreme Court held in effect that a relator who is not eligible to hold the office to which he aspries, is not entitled to a writ of mandamus directing that his name be placed on the primary ballot.
As part of his sworn petition relator Ferris attaches his affidavit and a number of exhibits concerning alleged facts in support of his contention that he will have been a practicing lawyer for four years next preceding the General Election for the year 1958. He says that on January 1, 1943 he entered the investment business as a dealer in securities and pursued such business along with the practice of law until December 1, 1957, when he was compelled to discontinue his investment business; that during all the time he was engaged in the investment business, and at all times since, he has held himself out as a lawyer ready, willing and able to handle all legal matters offered to him; and that during such time he has given legal advice to his clients as to their rights in regard to corporation stocks and investments, being paid brokers' fees when same were due for brokers' services, and attorneys' fees when due as such.
Specifically relator Ferris says that in 1953 he represented Clint Murchison, Sid Richardson and Robert Young, assisting them to obtain control of the New York Central Railroad Company, for which services he was paid an attorney's fee of $5,000. He says further that he handled similar transactions for other clients in proxy fights in the investment trade as to shares of stock in Missouri Pacific Railroad Company in 1953, the Allegheny Corporation in 1954, and Libby, McNeill and Libby in 1955.
Attached to relator's petition as an exhibit is a certificate dated May 13, 1958, signed by the Clerk of the Supreme Court of Texas to the effect that relator was admitted and licensed as an attorney and counselor at law by the Supreme Court on December 16, 1935, and that he is in good standing and his private and professional character appears to be good. Attached also is a copy of a letter from Bowser, Inc., Chicago, Illinois, dated May 1, 1958 addressed to "Mr. John D. Ferris, John D. Ferris & Company, First National Bank, Dallas, Texas," enclosing a check for $500 *297 "which represents legal services and expenses you have incurred to date."
Respondents in their sworn answer assert that the facts alleged by relator are insufficient to support his conclusion that he has been practicing law for the required four years period. In this connection respondents take the position that the specific instances alleged by relator do not describe legal services at all, but merely describe solicitation of proxies in fights involving the voting of corporation stocks, a service which is not the practice of law, but is a service customarily done and performed by brokers. Moreover, say respondents, the proxy fight involving Murchison, Richardson and Young, and control of the New York Central Railroad took place in the year 1955, and not the year 1953 as stated by relator.
Attached to respondents' answer is an affidavit of Clint Murchison in which affidavit Clint Murchison states that John D. Ferris was never employed by him either alone or with others to perform any legal services.
Respondents also affirmatively allege, and this is their main contention, that relator has not been and will not have been a practicing lawyer for a period of four years next preceding the General Election to be held in this State in November 1958.
In support of this last contention respondents attach to their sworn answer as an exhibit a written pleading filed May 12, 1958 in behalf of relator Ferris as defendant in Cause No. 26,826 E/C. Styled Francis I. Dupont and Company, et al., v. John D. Ferris. In his pleading in the above suit defendant Ferris, relator here, makes this statement, "That at all times from on or about January 1, 1943, until on the 1st day of December 1957, cross plaintiff was engaged as a sole proprietorship under the trade name of Ferris & Company, in the investment business * * * that during the time plaintiff was engaged in the investments business as hereinabove alleged, he devoted his entire business time and effort to said business, * * * That cross defendants, acting together and in concert, and in furtherance and pursuance of said conspiracy hereinabove alleged, * * * thereby so injuring cross plaintiff's good reputation * * * and his investment business, thereby caused cross plaintiff's income therefrom, which was his sole source of income, to become so badly depleted that he, cross plaintiff, during the year of 1957 became involved in financial difficulties * * *" (Emphasis ours).
Respondents also attach as an exhibit excerpts from the testimony of John D. Ferris given June 26, 1957, in Cause No. 87859-E. Styled E. F. Hutton and Company v. John D. Ferris, in the 101st. District Court. In this proceeding defendant Ferris, relator here, stated that his name was John D. Ferris "Doing business as Ferris & Company", that he is in the investment brokerage business. The following also appears: "The Court: Yes, Sir, the Court understands that you are a lawyer, or have a license to practice law, is that right, Mr. Ferris? The Witness: Reputed to be a lawyer."
In addition respondents' sworn answer contains averments as follows:
(a) Poll tax receipt issued to John D. Ferris on January 27, 1956 lists his occupation as a broker he was not claiming his occupation to be that of a lawyer. In his poll tax receipt issued January 30, 1958 he does list his occupation as lawyer.
(b) A check of the Dallas City Directory issues of 1955 and 1958 shows that John D. Ferris is not listed as a lawyer, but is listed as being in the investment business under the name of Ferris and Company.
(c) A check of Martindale-Hubbell Legal Directory issues of 1956, 1957 and 1958 shows that John D. Ferris is not listed in said publication, either in the alphabetical or biographical sections of said issues.
(d) A check of the telephone directory for the City of Dallas for May 1958 finds *298 the name of relator, but is a residence listing only; nor is relator listed in the "yellow pages" of the directory for 1957 as an attorney but is listed under the classification "Brokers-Investment" as Ferris and Company.
(e) Prior to the end of World War II John D. Ferris ceased to hold himself out as a practicing attorney and began to devote his entire time and attention to the sale of stocks and bonds; and that he continued in this business endeavor from that time on unless it be that within the last few months he has again attempted to practice law.
From the foregoing summaries of the sworn pleadings and exhibits of relator and respondents it is plain that a fact question is presented as to whether relator John D. Ferris will have been or can possibly have been a practicing attorney for a period of four years next preceding the holding of the General Election in this State in November 1958. In an opinion adopted by our Supreme Court it has been held that the Supreme Court has no jurisdiction to issue a writ of mandamus when a fact question is presented. Rogers v. Lynn, 121 Tex. 467, 49 S.W.2d 709, 51 S.W.2d 1113. See also Dick v. Kazen, Tex., 292 S.W.2d 913, 915. We believe that the holding is applicable also to this court and requires us to deny relator's application for a writ.
The case of Cantrell v. Carlson, Tex., 314 S.W.2d 286 is not in point with the facts of this case. In the Cantrell case relator swore, though belatedly, that as of June 2, 1958 he was a Republican. The Supreme Court held that his good faith as to his party affiliation was a question for the voters, not the Republican Party officials. In the case now before us we have a controverted fact question as to how long relator has been or will have been a practicing lawyer next preceding election day.
Respondents further charge that relator did not tender the proper filing fee. The Republican Executive Committee had tentatively set the filing fee at $100 provided the application should be accompanied by a petition of 200 qualified Republican voters asking that the applicant's name be placed on the ballot; in the absence of such a petition the filing fee would be $500. Relator tendered only a $100 as a filing fee, though his application was not accompanied by the petition above mentioned.
Relator's application for a writ is denied.
Because of the short time between the delivery of this opinion and June 16, 1958, the date for the printing of the official ballot, a motion for rehearing will not be entertained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2460148/ | 957 S.W.2d 566 (1995)
BUTLER & BINION, et al., Appellants,
v.
HARTFORD LLOYD'S INSURANCE COMPANY, et al., Appellees.
No. 14-94-00694-CV.
Court of Appeals of Texas, Houston (14th Dist.).
November 22, 1995.
Rehearing Overruled December 14, 1995 and November 25, 1997.
*567 Joe C. Holzer, Houston, for appellants.
Arno W. Krebs, Jr., Houston, Ben Taylor, Dallas, for appellees.
MURPHY, C.J., and AMIDEI and ANDERSON, JJ.
OPINION
MURPHY, Chief Justice.
Appellants, Butler & Binion, a law firm, and several of its partners, appeal from a summary judgment granted in favor of appellees, Hartford Lloyd's Insurance Company and Hartford Casualty Insurance Company. Appellants brought suit, alleging the appellees breached their insurance contracts and their duty of good faith and fair dealing by failing to defend and indemnify them in a prior lawsuit brought by Colette Bohatch. Appellees filed a motion for summary judgment, arguing that no duty to defend or duty to indemnify existed because appellants' insurance policies did not cover the allegations asserted by Bohatch. The trial court granted summary judgment, disposing of all claims asserted by appellants. Appellants bring one point of error contending: (1) a fact issue existed as to whether appellants intentionally caused injury to Bohatch which would have precluded coverage under the commercial general liability policy; (2) Bohatch's claims fell within the "bodily injury," "advertising injury" and "personal injury" provisions of the commercial general liability policy; (3) appellants' commercial general liability policy covered exemplary damages; (4) appellants' workers compensation and employer's liability insurance policy covered Bohatch's claims; and (5) appellees acted in bad faith by failing to defend and fully indemnify appellants in the suit brought by Bohatch. We affirm.
In 1991, Colette Bohatch, a former partner of Butler & Binion, sued appellants, alleging she was constructively expelled as a partner after she reported alleged unethical conduct by another Butler & Binion partner. At the time of Bohatch's alleged injuries, appellants *568 were insured by both a commercial general liability policy and a workers' compensation/employer's liability policy issued by the appellees. In her petition, Bohatch alleged appellants unfairly restricted her access to clients, reassigned her work, and reduced her employment compensation. Bohatch asserted causes of action for breach of fiduciary duty, breach of the duty of good faith and fair dealing and breach of contract. A jury awarded Bohatch actual, exemplary and mental anguish damages and attorneys' fees. Appellees defended appellants in the Bohatch lawsuit under a reservation of rights agreement; but, appellees agreed to pay only one-half of the continuing defense costs during appellants' appeal of the jury's verdict. Moreover, appellees refused to indemnify appellants, asserting that no insurance coverage existed for damages awarded to Bohatch.
When reviewing an appeal from a summary judgment, we must determine whether the proof establishes as a matter of law that there is no genuine issue of material fact. Rodriguez v. Naylor, 763 S.W.2d 411, 413 (Tex.1989). To decide whether a disputed material fact issue exists, the proof is viewed in favor of the non-movant, resolving all doubts and indulging all reasonable inferences in its favor, and the evidence is taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). A defendant as a movant must either: (1) disprove at least one element of each of plaintiff's theories of recovery; or (2) plead and conclusively establish each essential element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979).
The controlling issues in this case are whether the appellees had a duty to defend or indemnify appellants in the prior lawsuit filed by Bohatch. In Texas, the duty to defend and duty to indemnify are distinct and separate duties. American Alliance Ins. v. Frito-Lay, 788 S.W.2d 152, 153 (Tex. App.Dallas 1990, writ dism'd). An insurer owes a duty to defend if the plaintiff's petition alleges facts within the scope of coverage. American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 (Tex.1994); Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 25 (Tex.1965). The duty to defend is unaffected by facts ascertained before suit, developed in the process of litigation, or by the ultimate outcome of the suit. Argonaut, 500 S.W.2d at 636; American Alliance Ins., 788 S.W.2d at 154; Feed Store, Inc. v. Reliance Ins. Co., 774 S.W.2d 73, 74-75 (Tex.App.Houston [14th Dist.] 1989, writ denied). An insurer has the burden to prove that the allegations contained in the underlying plaintiff's petition are excluded from coverage. Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 676 (Tex.App. Houston [14th Dist.] 1993, writ denied). Any doubt is resolved in the insured's favor. See Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex.1987); Feed Store, 774 S.W.2d at 75. If a case is potentially within the policy coverage, the insurer has a duty to defend. Adamo, 853 S.W.2d at 676; Mary Kay Cosmetics, Inc. v. North River Ins. Co., 739 S.W.2d 608, 612 (Tex.App.Dallas 1987, no writ).
Appellants essentially contend that appellees owed a duty to defend because Bohatch's allegations, contained in her petitions, fell within various provisions of the commercial general liability policy and the workers compensation/employer's liability insurance. We disagree.
First, appellants contend Bohatch's claims constituted a "bodily injury" under "Coverage A" of the commercial general liability policy. The policy states that a "bodily injury" must be caused by an "occurrence" which is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The policy further excludes coverage for "bodily injury" that is "expected or intended from the standpoint of the insured." Upon reviewing Bohatch's petitions, we find no allegations that would trigger coverage under the "bodily injury" provision. Bohatch alleged only intentional conduct by appellants which was not only expressly excluded under this provision, but also, did not constitute an "occurrence" as that term is defined in the policy. See Argonaut, 500 S.W.2d at 635; Baldwin v. Aetna Casualty & Sur. Co., 750 *569 S.W.2d 919, 921 (Tex.App.Amarillo 1988, writ denied). In addition, whether appellants, in fact, intentionally injured Bohatch is immaterial. Baldwin, 750 S.W.2d at 921. Rather, the duty to defend is determined by the kind of claim advanced against the insured as it relates to the scope of the policy. Id. Each of Bohatch's claims alleged intentional or willful actions, which were not covered under the policy. Therefore, appellants' contention is overruled.
Alternatively, appellants contend the "bodily injury" provision is ambiguous, and thus, this Court should construe the policy in their favor. The construction of appellants' insurance policies are governed by ordinary contract principles. Barnett, 723 S.W.2d at 665; Clemons v. State Farm Fire & Cas. Co., 879 S.W.2d 385, 391 (Tex.App. Houston [14th Dist.] 1994, no writ). The construction of the policies is a question of law for the court to determine. Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex.1983); R & P Enterprises v. La Guarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex.1980); Clemons, 879 S.W.2d at 391. Insurance policies are to be strictly construed in favor of the insured in order to avoid exclusion of coverage. Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984). If, however, the written instrument is worded so that it can be given only one reasonable construction, it will be enforced as written. National Union v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). Language in insurance provisions is only ambiguous if the court is uncertain as to which of two or more meanings was intended. Houston Petroleum v. Highlands Ins., 830 S.W.2d 153, 155 (Tex.App. Houston [1st Dist.] 1990, writ denied); Clemons, 879 S.W.2d at 391.
After considering the "bodily injury" provision, we find that no ambiguity exists. Under the plain meaning of this provision, appellees promised to defend and pay for losses that appellants became legally obligated to pay as a result of "bodily injury" claims payable under the terms of the policy. Thus, because no ambiguity exists, we are not compelled to expand the plain meaning of "bodily injury" to include Bohatch's claims.
Second, appellants argue Bohatch's claims constituted a "personal injury" under "Coverage B" of the commercial general liability policy. The policy defines a "personal injury," in part, as an "eviction of a person from, a room, dwelling or premises that the person occupies." No coverage exists under this definition because Bohatch's petitions fail to state a cause of action for wrongful eviction, which is a separate cause of action in Texas. See, e.g., Design Center Venture v. Overseas Multi-Projects Corp., 748 S.W.2d 469 (Tex.App.Houston [1st Dist.] 1988, writ denied). Instead, the thrust of Bohatch's petitions is constructive expulsion which is distinct from wrongful eviction. The policy also defines "personal injury" as "discrimination or humiliation that results in injury to feelings or reputation of a natural person." Appellees' policy, however, excludes coverage for discrimination and humiliation that is done intentionally or at the direction of appellants. Because Bohatch's petition alleges only intentional conduct, there is no coverage for discrimination and humiliation. Thus, the "personal injury" provision of "Coverage B" fails to cover Bohatch's claims.
Third, appellants assert Bohatch's slander claim constituted an "advertising injury" under the commercial general liability policy. We need not address this issue, however, because appellees fully defended appellants during the pendency of Bohatch's slander allegations which were ultimately abandoned in her sixth amended petition. Thus, no issue exists concerning the duty to defend and indemnify as to Bohatch's slander claim.
Fourth, appellants contend coverage exists under both workers compensation and employer's liability insurance which apply to "bodily injury by accident or bodily injury by disease" (emphasis added). Unlike workers compensation insurance, however, employer's liability insurance specifically excludes coverage for bodily injury intentionally caused by the insured. Bohatch's petition does not mention accidental conduct or disease related damages. Her petition asserts exclusively intentional conduct which precludes coverage under both the workers compensation and employer's liability policies. We find no factual *570 allegations in Bohatch's petition showing appellees' potential liability under any provision of either the commercial general liability policy or the workers compensation/employer's liability insurance. Therefore, appellees owed no duty to defend appellants on this basis in the lawsuit filed by Bohatch.
Unlike the duty to defend, the duty to indemnify is based not upon the pleadings, but instead, upon the actual underlying facts and the resulting liability. Heyden, 387 S.W.2d at 25; American Alliance Ins., 788 S.W.2d at 154. In the underlying case, the jury found that the partners intentionally breached their fiduciary duty and partnership agreement. The jury awarded Bohatch both actual and punitive damages. On appeal, however, this Court limited Bohatch's recovery to breach of contract damages and attorney fees. See Bohatch v. Butler & Binion, 905 S.W.2d 597 (Tex.App.Houston [14th Dist.] 1995, no writ). Thus, because neither the commercial general liability policy, nor the workers compensation/employer's liability insurance covers breach of contract damages, nor attorney fees, appellees owe no duty to indemnify appellants.
In appellants' final argument, they assert appellees acted in bad faith by failing to defend and indemnify them in their suit against Bohatch. To establish bad faith by appellees, appellants must prove that appellees had no reasonable basis for denying the insurance claim, or that they failed to determine whether there was any reasonable basis for denying the claim. Arnold v. National County Mut. Fire. Ins. Co., 725 S.W.2d 165, 167 (Tex.1987); Pioneer Chlor Alkali v. Royal Indem. Co., 879 S.W.2d 920, 939 (Tex. App.Houston [14th Dist.] 1994, no writ); State Farm Lloyds v. Mower, 876 S.W.2d 914, 921 (Tex.App.Houston [1st Dist.] 1993, writ requested). Because appellants failed to prove that appellees owed a duty to defend and a duty to indemnify, they, likewise, are unable to show that no reasonable basis existed for denying their insurance claim, and therefore, bad faith.
Based on uncontroverted summary judgment proof, Bohatch's petitions and the insurance policies, we find that the trial court correctly determined as a matter of law that appellees had neither a duty to defend nor indemnify appellants in the prior suit filed by Bohatch. Appellants' sole point of error is overruled.
The judgment of the court below is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2151751/ | 539 F. Supp. 542 (1982)
NIPPON ELECTRIC GLASS COMPANY, LTD., Plaintiff,
v.
Edward E. SHELDON, Defendant.
ASAHI GLASS COMPANY, LTD., Plaintiff,
v.
Edward E. SHELDON, Defendant.
Edward E. SHELDON, Plaintiff,
v.
SONY CORPORATION OF AMERICA, Defendant.
Nos. 79 Civ. 2525 (RLC), 80 Civ. 2654 (RLC) and 80 Civ. 5321 (RLC).
United States District Court, S. D. New York.
May 21, 1982.
*543 *544 Hopgood, Calimafde, Kalil, Blaustein & Judlowe, New York City, for plaintiff Nippon Elec. Glass; John M. Calimafde, Frank Murphy, William Botjer, New York City, of counsel.
Paul, Weiss, Rifkind, Wharton & Garrison, New York City, and Oblon, Fisher, Spivak McClelland & Maier, P. C., Arlington, Va., for Asahi Glass Co.; Jay L. Himes, New York City, Arthur I. Neustadt, Richard D. Kelly, Arlington, Va., of counsel.
Spellman, Joel & Pelton, Robert J. Eichelburg, White Plains, N.Y., for Sheldon; Martin J. Spellman, White Plains, N.Y., of counsel.
OPINION
ROBERT L. CARTER, District Judge.
Three actions concerning the validity and infringement of patents pertaining to color television picture tubes were consolidated and tried before a jury on April 20-23, 1982. At the conclusion of the presentation of the evidence, the court, having concluded that without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, a reasonable minded jury would be compelled to render a verdict for the corporate parties, see Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970), took the case from the jury. The motions for directed verdict were granted because viewing the evidence in the light most favorable to Sheldon, "the evidence [was] so strongly and overwhelmingly in favor of [his opponents] that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against [them]." Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2d Cir.), cert. denied, 400 U.S. 833, 91 S. Ct. 67, 27 L. Ed. 2d 65 (1970) (citations omitted); Noonan v. Midland Capital Corporation, 453 F.2d 459, 461 (2d Cir.), cert. denied, 406 U.S. 495 (1972); Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 167 (2d Cir. 1980). Most recently in Daddi v. United Overseas Export Lines, Inc., "Oriental Inventor", 674 F.2d 175, at 177 (2d Cir. 1982), the above principle has again been reaffirmed as the controlling yardstick to be utilized in directed verdict determinations.
In dispute are two patents awarded to Dr. Edward Sheldon, United States Patents Nos. 3,543,073 ("'073 patent") and 3,610,994 ("'994 patent") for "Vacuum" and "Cathode-ray" "Tubes of Television Type for X-ray Protection[.]" Dr. Sheldon elected claim 1 of the '073 patent as a representative claim of both patents.[1] Among its salient characteristics are a vacuum tube for color television comprising electronic parts to generate a beam of free electrons, a fluorescent screen that produces a multicolor television image, and a shielding mechanism to reduce X-ray emission through the face plate "to the amount smaller than 0.04 milliroentgen per hour [mr/hr][2] measured at the distance of 5 cm. from said face plate, ... with said tube operating at 30 kv. potential and with said beam being of the standard amperage used in color television tubes ...."
The action commenced as a suit for declaration of patent invalidity brought by Nippon Electric Glass Company, Ltd. ("NEG") against Sheldon. A similar action was filed by Asahi Glass Company, Ltd. ("Asahi") soon afterward. NEG and Asahi manufacture glass envelopes that are used in the production of television sets, and they are the principal supplier of these envelopes for Sony Corporation of America ("Sony"), a large producer of color televisions. In response to the suits against him, Sheldon initiated a lawsuit for patent infringement against Sony.[3] Before trial, *545 Sony entered into a stipulation with Sheldon, the substance of which conceded that if the patents are valid, then Sony has marketed televisions infringing the patents.
Sheldon is a radiologist by training and profession. Sometime in late 1965 or early 1966 he had a "premonition" that color televisions emitted unsafe levels of X-radiation. He pursued this hunch with some testing and experimentation and eventually became convinced that the sets were unsafe. In particular, Sheldon's research convinced him that while the emissions from color televisions operating under normal conditions presented no danger to the viewer, when the set operated abnormally, that is, in excess of designated voltage limits, the potential harm from excess radiation was great. Sheldon's patents were a result of this "discovery."
Dr. Sheldon testified that he studied the literature for about a year without discovering any discussion of the problems. In the second half of 1966, he wrote a report, Danger of Eye Cataracts from X-rays Produced by Home TV Receivers. Simultaneously, he pursued through the United States Patent Office several patent applications that pertain to radiation safe color television tubes.[4] In September or October, 1967, he testified before a Congressional Committee about the danger. At that time there was no federal legislation on the subject. The Underwriters Laboratories, the testing arm of the industry, recommended a maximum emission level of 2.5 mr/hr. The National Council of Radiation Protection recommended 0.5 mr/hr under normal operating conditions. Sheldon advocated a prescribed limit of 0.4 mr/hr under all conditions.
Sheldon's patents suggest that safe tubes could be produced without changing their basic components of an electron beam "gun" and a fluorescent screen contained within a glass tube, if the glass was made more resistant to radiation transmission by enhancing its radiation absorption characteristics. Sheldon candidly admitted, however, that he is not a glass technologist and that "the glass is not my invention." Transcript ("Tr.") 674. His contribution to the art, or so he claims, is teaching the need to provide greater protection. The gravamen of NEG's and Asahi's complaint is that this statement to the industry cannot satisfy the minimum threshold for patentable subject matter.
To qualify for a patent, a person must invent or discover some "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof ..." 35 U.S.C. § 101 (1976). No precise scope for patentability has been delineated; the issue is a recurrent source of Supreme Court litigation that has stressed the thinness of the line between the patentable and the unpatentable. See, e.g., Diamond v. Diehr, 450 U.S. 175, 101 S. Ct. 1048, 67 L. Ed. 2d 155 (1981); Parker v. Flook, 437 U.S. 584, 589, 98 S. Ct. 2522, 2525, 57 L. Ed. 2d 451 (1978). Clearly excluded from the realm of patentable subjects are "`[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts ..., as they are the basic tools of scientific and technological work.'" Parker v. Flook, supra, 437 U.S. at 589, 98 S. Ct. at 2525 (quoting Gottschalk v. Benson, 409 U.S. 63, 67, 93 S. Ct. 253, 255, 34 L. Ed. 2d 273 (1972)). This proscription is tempered by the recognition that a practical application of laws of nature is protected by the patent monopoly. Sheldon's ability to satisfy the § 101 requirements for patentability thus turns, in part, on whether his "invention" is correctly described as mere observations of the inherent *546 tolerance of the human body for X-radiation and of the radiation potential of commercial television sets or as a design for a television tube that combines those observations with a knowledge of picture tube construction to reveal how to manufacture a safe television.
Of course, satisfying the subject matter requirement of § 101 would not fulfill all of Sheldon's obligations under that section. Sheldon's apparatus, to qualify for a patent, must also be "novel[.]" The novelty requirement, which finds greater specificity in 35 U.S.C. §§ 102, 103 (1976), precludes patenting devices substantially identical to existing articles whose elements perform substantially the same work in substantially the same manner. E.g., American Seating Co. v. National Seating Co., 457 F. Supp. 444, 452 (N.D.Ohio 1976), aff'd, 586 F.2d 611, (6th Cir. 1978), cert. denied, 441 U.S. 907, 99 S. Ct. 1999, 60 L. Ed. 2d 377 (1979). In particular, courts will not permit an inventor to hold a protected monopoly on an apparatus that differs from prior incarnations solely due to substitution of a known substance for another performing essentially the same purpose. See, e.g., Griffith Rubber Mills v. Hoffar, 313 F.2d 1, 3-4 (9th Cir. 1963); E. H. Tate Co. v. Jiffy Enterprises, Inc., 196 F. Supp. 286, 298 (E.D.Pa.1961), aff'd, 306 F.2d 240, 243 (3rd Cir.), cert. denied, 371 U.S. 922, 87 S. Ct. 289, 9 L. Ed. 2d 230 (1962).
The evidence presented at trial left no viable question whether Sheldon invented a "new and useful process, machine, manufacture or composition of matter, ...." Even granting Sheldon the presumption of validity that accompanies his patent,[5] the court could find no credible evidence that Sheldon satisfied the subject matter and novelty requisites of § 101. Perhaps the most compelling evidence of the patents' shortcomings came from Sheldon's own testimony. On cross-examination he conceded that all the constituents of his claim other than the prescription of the limit of 0.04 mr/hr on transmitted X-radiation were well known prior to his patent. Tr. 187-208, 223. By his own account, thus, Sheldon attempted to patent a desired result or a numerical limit or standard. He claimed to have discovered a phenomenon of nature, that X-radiation in excess of 0.04 mr/hr from televisions is harmful to human health[6] and applied for a patent to privatize the benefits that would flow from his teaching. Such a monopoly on ideas is unavailable under the patent laws.
Even if one were to construe the patent as one for a "safe color television tube," as Sheldon suggests, the patent would fail for lack of novelty. The sole departure from the standard X-radiation protection ordinarily found in color televisions that Sheldon claims is a substantially lead-free "X-ray absorbing means ... provided by an oxide of alkali earth metal, in which said X-ray absorbing means comprise more than 10% of said oxide and less than 20% of said oxide and in which said face plate has X-ray absorbing power higher than the equivalent X-ray absorbing power of 0.190 mm. of lead." '073 patent, Claim 15. The evidence demonstrated that there was nothing novel in the use of oxides of alkali earth metals, such as barium oxide, as radiation sponges for television tube glass and that glass made according to formulae disclosed in two prior art patents met the radiation absorption requirements. See United States Patent No. 2,527,693 ("Armistead patent"), Exh. 27(N); British Patent No. 994,118 ("British patent"), Exh. 45(N). With all the other parts of the tube concededly known, and the one assertedly novel *547 component equally well known, Sheldon's patents are devoid of a patentable apparatus. The only novel aspect that he could claim (and even the originality of this observation is disputed by NEG and Asahi, see note 6, supra) is the idea that a certain level of protection is necessary or desirable; an idea that is unpatentable regardless of novelty or significance. Accordingly, the patents are invalid under § 101 because of lack of patentable subject matter and lack of novelty.
NEG and Asahi argued that in addition to the patents' failings under § 101, they are also deficient under 35 U.S.C. § 103 (1976). Section 103 was added to the patent laws as explicit statutory approval of decisions denying or invalidating patents under § 101 because of the obviousness of the subject matter. See 66 Stat. 798 (1952) (reviser's note to § 1). As such, declarations of invalidity under § 103 amplify findings made under § 101. Application of § 103 requires a three step review:
the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.
Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S. Ct. 684, 694, 15 L. Ed. 2d 545 (1966).
The evidence included several pieces of relevant prior art. Most pertinent were the British patent and the Armistead patent that disclosed glass composition for television picture tubes. An additional piece of art is the publication of an article in the periodical Science Magazine, October, 1959, issue, Exh. 58(N), that discloses that television picture tubes operating at high voltages generate X-radiation. Finally, although there was no formal submission of prior art concerning the non-glass components of the television picture tube, for example, the electron beam producing element or the perforated grid, Dr. Sheldon readily admitted that those elements of his patent do not differ from prior art.
The plaintiffs introduced evidence of additional preemptive prior art in the form of sales of Zenith television sets that purportedly emitted no significant X-radiation and thus would have satisfied, long before Sheldon applied for the patent, the radiation limitation that Sheldon claims is the crux of his patent. The court did not rely on this evidence in reaching its decision, however, because questions were raised about the adequacy of the tests performed on the Zenith sets that could have caused reasonably minded jurors to discount the tests' significance.
The second step of the John Deere inquiry requires comparison of the prior art with the claims at issue to ascertain their differences. No difference between the collective teaching of the prior art and Sheldon's patents is readily apparent. As discussed above, Sheldon himself does not claim any novelty in his set design other than its ability to restrict X-radiation through the face plate to .04 mr/hr, measured at 5 cm. NEG and Asahi contend that the Science Magazine article contains that same prescription and that the Armistead patent and British patent teach how to make glass that would provide the necessary protection. Although the court is of the opinion that Sheldon did not raise any real question concerning the plaintiffs' demonstration of the complete preemption by prior art, Sheldon's patents would still fall even if the jury accepted his claim that the radiation emission standard set his tubes apart from the prior art. The court will thus proceed to determine obviousness accepting, arguendo, the claim that the limitation standard was novel.
The third requirement established by the John Deere rule is determination of the "level of ordinary skill in the pertinent art." 383 U.S. at 18. The only evidence on this question was presented by Asahi's witness, Carl Braestrap, who authored the Science Magazine article and who has spent his career studying radiation detection and protection. Tr. 382-90. Braestrap testified that the educational background of persons who determine what radiation protection there should be in television receivers would include a college education in physics or engineering followed by five to ten years experience in actually taking measurements. Tr. 397.
*548 Braestrap's observation is only of limited use, however, because at issue is not what would be an appropriate level of radiation protection, a figure that a detection and protection specialist might be qualified to answer, but, given the desire to limit emissions to .04 mr/hr, what would be an appropriate design for the television tube.[7] From this perspective, the pertinent level of skill is that of a glass technologist familiar with methods of controlling radiation through glass.[8]
Sheldon as much as conceded on the witness stand that his invention was obvious to any skilled practitioner of the art. When pressed to describe, with particularity, his invention and how it satisfied the specificity requirements of 35 U.S.C. § 112 (1976), Sheldon stated that the glass composition was not his invention; his invention consisted of the instruction of how much protection to provide. He discovered "what is necessary to do," meaning how much X-radiation it was necessary to absorb. Tr. 674. Armed with that information, "any glass technologist can make it [the protective glass]." Id. The problem that Sheldon solved was not how to produce the glass, but what to produce.
The obviousness inquiry thus returns us to the patentable subject matter inquiry, only with the issue viewed from a different perspective. The conclusion, under the § 101 review, was that Sheldon's patents were invalid either because they failed the novelty test, or because the only arguable original feature was an unpatentable prescription for a desirable degree of safety. Under § 103 it is clear that the patent is invalid because either it is mere recasting of the prior art, or the only plausible bit of novelty, the making of glass to conform to the prescribed radiation absorption qualities, would be obvious to a person of ordinary skill in the art once that person was instructed on the desirability of making glass with those absorption characteristics. As other would-be, but ultimately unsuccessful, inventors before him, Sheldon has patented a claim that is a mere improvement in safety features previously incorporated into the art. It is a "`change only in form, proportion or degree.... doing substantially the same thing in the same way by substantially the same means with better results [, but this] is not such invention as will sustain a patent.'" Pullman, Incorporated v. ACF Industries, Incorporated, 393 F.2d 83, 89 (2d Cir. 1968) (quoting Eibel Process Company v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S. Ct. 322, 67 L. Ed. 523 (1923)).
IT IS SO ORDERED.
NOTES
[1] By stipulation this claim was construed to include two elements not found in claim 1 of the '073 patent: a shadow mask and a light filtering means included in the face plate. The novelty or patentability of these elements alone was not advanced by Sheldon.
[2] A roentgen is a unit of measurement of radiation. A milliroentgen is 1/1000 of a roentgen.
[3] Because the patents cover color television tubes and not merely their glass envelope, the primary infringement would occur through the sales of the complete tubes by Sony. NEG and Asahi could be liable for contributory infringement if Sony was found to be an infringer because their glass tubes are essential elements of Sony's televisions.
[4] Although much has been made of Sheldon's tactics before the United States Patent Office and his relationship with some of the examiners, his alleged misconduct did not contribute to the court's decision and therefore will not be recounted at length. It is sufficient to note that after abandoning several applications that were denied because of lack of novelty, obviousness in light of the prior art, or lack of patentable subject matter, Sheldon finally succeeded in having an examiner approve the two patents at issue here.
[5] In this Circuit, the presumption of validity carries no independent weight and means only that reasonable doubts will be resolved in favor of the patent holder. E.g., Reeves Bros., Inc. v. U.S. Laminating Corp., 417 F.2d 869, 872 (2d Cir. 1969); Lorenz v. F. W. Woolworth Co., 305 F.2d 102, 105 (2d Cir. 1962).
[6] NEG and Asahi dispute Sheldon's claim that he discovered this "phenomenon" and introduced what they considered were publications alerting the scientific community to this danger before Sheldon entered the field. The anticipatory effect of these publications was challenged by Sheldon and is not necessary to support the court's conclusion of invalidity.
[7] The inquiry must point in this direction because the patent protects technical achievement, not ideas. See, e.g., Lemelson v. Topper Corporation, 450 F.2d 845, 848 (2d Cir. 1971), cert. denied, 405 U.S. 989, 92 S. Ct. 1253, 31 L. Ed. 2d 456 (1972); Janex Corporation v. Bradley Time, 460 F. Supp. 383, 387-88 (S.D.N.Y. 1978) (Frankel, J.).
[8] A formal finding of the level of skill that a person reasonably adept in the art would possess is not an absolute prerequisite to ruling a patent void for obviousness. See Pullman, Incorporated v. ACF Industries, Incorporated, 393 F.2d 83, 86 (2d Cir. 1968). In Pullman, the Court of Appeals rejected the argument that the district court's reliance on a general conclusion that a "hypothetical mechanic" would possess such knowledge as to render the patented device obvious was misplaced and that a specific finding of reasonable skill was necessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2151753/ | 21 Cal. App. 3d 921 (1971)
98 Cal. Rptr. 874
JEAN W. THOMAS, Plaintiff and Appellant,
v.
STUART L. WRIGHT et al., Defendants and Respondents.
Docket No. 38233.
Court of Appeals of California, Second District, Division Two.
December 8, 1971.
*922 COUNSEL
Anderson, Adams & Bacon and Robert L. Bacon for Plaintiff and Appellant.
Riemer & Anderson and Richard L. Riemer for Defendants and Respondents.
OPINION
HERNDON, Acting P.J.
Appellant brought this action seeking cancellation and enjoining the foreclosure of a deed of trust on her home executed by her to secure payment of obligations assumed by her under the provisions of an instrument entitled "Automobile Leasing Contract." The trial court rendered judgment in favor of defendants and dissolved the previously granted injunction against the foreclosure.
The findings of fact of the trial court are not disputed. The sole issue on appeal is the correctness of the court's conclusion of law that the contract here in question does not constitute a "Conditional Sale Contract" within the purview of the Automobile Sales Finance Act, commonly known as the Rees-Levering Act, and found in sections 2981 et seq. of the Civil Code. The act prohibits the seller from taking as security for the contract balance the title to or a lien upon any property other than the motor vehicle which is the subject matter of the conditional sale.
We conclude that the instant contract falls within the coverage of the act with the result that the deed of trust taken by respondents as security *923 for the obligations created by the contract is invalid and unenforceable under the provisions of Civil Code section 2984.2.[1] It follows that appellant is entitled to a judgment cancelling the deed of trust. (Cf. Brewer v. Home Owners Auto Finance Co., 10 Cal. App. 3d 337 [89 Cal. Rptr. 231].)
In May of 1966, appellant, finding herself in need of a car in order to get to her job as a grocery checker, went to a local Ford dealer, Barclay Ford, in order to purchase one. Mrs. Thomas was a divorcee with a high school education and was very inexperienced in business matters.
After agreeing with Barclay to purchase a certain car, she was informed that "the bank" would not accept her credit because of the fact that a car previously purchased by her had been repossessed. Barclay Ford then referred her to Mr. Stuart L. Wright of respondent Home Owners Auto Finance Company. On May 25, 1966, following her discussions with Mr. Wright, appellant executed the "Automobile Leasing Contract" and the trust deed in question.
Mrs. Thomas took possession of the automobile, and made the required down payment of $300. Thereafter she made five monthly payments. On March 7, 1967, after she had become delinquent on three monthly payments, respondent finance company repossessed said automobile and commenced foreclosure proceedings to recover the balance of $1,850.77 claimed to be due under the terms of the lease contract.
Since the controlling issue in this case will be determined by the legal effect of the lease agreement, we shall now closely examine its provisions. Respondent finance company agreed to make available to appellant the 1965 Ford she had chosen at Barclay Ford for a maximum term of 48 months in consideration of a payment of $300 to be made by her on May 26, 1966, and 48 monthly installments of $74.09 each due on the 26th day of each month thereafter.
The total of the rental payments for the full term of the contract, referred to therein as the "total lease price," is $3,856.32. The contract provides that "for the purposes of this lease" the "cash value" of the vehicle is $2,325.80. The sum of $1,530.52, representing the difference between the "total lease price" and the agreed "cash value" of the vehicle is referred to as the "rental mark-up."
*924 Paragraph 2 of the contract provides that upon termination of the lease, the rental value is to be computed by subtracting from the total lease price of $3,856.32 an amount equal to all rental paid plus the value of the vehicle at the time of its return. It is further provided that "the value of the vehicle shall be the amount of our appraisal or an appraisal from any bona fide cash buyer of lessee's choice; whichever is greater" and that "if the payments made plus the value of the vehicle is greater than the total lease price, the difference will be paid to the lessee in cash."
The lessee is given the right to terminate the lease at any time upon 30 days' notice with rental calculation to be made according to the terms of paragraph 2. The agreement also provides that upon any termination within six months from the lease date, the lessee would be entitled also to a credit of 60 per cent of the $1,530.52 referred to as the "rental mark-up."
Civil Code section 2981, subdivision (a)(2) defines a "Conditional Sale Contract" as including "Any contract for the bailment or leasing of a motor vehicle between a buyer and a seller, with or without accessories, by which the bailee or lessee agrees to pay as compensation a sum substantially equivalent to the value of the property, and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming, the owner of the property upon full compliance with the terms of the contract ..."
(1) It appears to us that the instant contract falls within the foregoing statutory definition. Appellant agreed to pay respondent "as compensation" a "total lease price" of $3,856.32 which was computed by adding to the cash value of the vehicle, fixed at $2,325.80, the "rental mark-up" of $1,530.52. Certainly appellant agreed to pay respondent a sum more than "substantially equivalent to the value of the 1965 Ford." Furthermore, this contract, in its practical and substantial effect, gives the "lessee" an option by which, upon payment of the prescribed rentals for the term of the contract, he becomes entitled either to the vehicle or to its appraised value in cash. Mr. Wright testified that "there have been times when the customer has been given the title to the car if they preferred that, rather than the check."
Respondent argues that because the contract is entitled "Automobile Leasing Contract" and the parties are therein referred to as "lessor" and "lessee," the conclusion necessarily follows that it is a lease and not a contract of sale within the coverage of the act. Respondent cites People v. One 1955 Buick 2-Door Coupe, 187 Cal. App. 2d 684, 688 [10 Cal. Rptr. 79], which relied in part upon such terminology. But that decision does not hold such nomenclature to be conclusive. Law and equity require that we *925 look to substance rather than form in ascertaining the nature and legal effect of this agreement. Therefore, we have examined the substantive rights and liabilities created by the so-called "Automobile Leasing Contract" in order to determine whether or not it is a "Conditional Sale Contract" within the meaning of Civil Code section 2981, subdivision (a) (2).
We conclude that the decision in People v. One 1955 Buick 2-Door Coupe, supra, is not controlling because the distinctions there drawn between leases and conditional sales contracts concerned the application of the forfeiture provisions of Health and Safety Code sections 11610 and 11611. As the court pointed out in that case: "It is apparent from the face of the statute that the Legislature did not intend the definition as contained in section 2981 to govern in the Health and Safety Code." (P. 691.)
Respondent argues that since the lessee could terminate the lease at any time, it follows that she could relieve herself of the obligation to pay a price "equivalent to the value of the property." This argument does not withstand analysis.
Although the return of the automobile would relieve the lessee of liability for further monthly payments, such a termination would create an immediate obligation on the part of the lessee to make a payment computed as provided in paragraph 2. Thus, upon such a termination by the lessee, an obligation would be incurred to pay the entire rental mark-up of $1,530.52, or 60 percent of the rental mark-up if the termination occurred within the first six months, plus any depreciation that the car had suffered during the lessee's possession which is computed by determining the difference between $2,325.80, the agreed value of the vehicle at the time of its delivery, and the amount that a bona fide cash buyer would pay at the time of its return. The sum of these figures reduced only by the amount of the payments already made would be the obligation incurred by reason of the early termination.
Applying the lease provisions to the facts of this case as they actually developed, we find that upon repossession of the car, appellant's liability for rental mark-up was $1,530.52, and her liability for depreciation and refurbishing was fixed by respondent at $955.32. These sums amount to a total charge of $2,485.84 for the nine months that appellant possessed the car. The amount of this obligation clearly exceeded the value of the vehicle. Subtracting from this the $635.07 that appellant had paid respondent while she had the car, respondent arrived at the claimed deficiency of $1,850.77. We conclude as a matter of law that the lease contract requires the lessee "to pay as compensation a sum substantially equivalent to the value of the property" whether or not the lease runs its full term.
*926 Under the provisions of this lease, the lessee is charged in any event with liability for any excess depreciation, that is, for any loss in value in excess of the amount calculated into the monthly lease payments. This liability is one of the indicia of ownership that is particularly important in the case of automobiles since they constitute a class of property with respect to which the depreciation rate is high, especially in the first year or two of ownership. Under the provisions of the present contract appellant was responsible for all depreciation whether she made all the payments or whether she elected to terminate the lease. Upon termination of the lease, paragraph 2 provides for a calculation of rent based upon the value of the automobile at that time. Thus, the lessee is charged with liability for depreciation in excess of that figured in the rental payments, the very aspect of ownership that the Legislature used in section 2981, subdivision (a) (2) to distinguish a lease from a conditional sale contract.
Respondent claims that to find the instant lease to be a "conditional sale contract" would be tantamount to holding all automobile leasing contracts to be "conditional sale contracts." We disagree.
Where a lease provides for total payments amounting to substantially less than the value of the automobile, or where the lessee is not subject to a detriment or liability for unforeseen depreciation, then there is a true lease and the act does not apply. In a lease not covered by section 2981, subdivision (a) (2), the total cost of depreciation charged to the lessee is included in the payments at a pre-set amount. Any unforeseen change in value is, thus, the liability of the lessor.
On the other hand, where the depreciation cost is entirely or partially determined by a provision that operates by using the value of the automobile at the time of lease termination, then the lessee possesses one more aspect of that bundle of rights known as ownership. Thus, if the lessee is to become the owner of the automobile, or, as in the instant case, will be compensated in an amount equal to the value of the automobile at the time of lease termination, then the requisite condition of section 2981, subdivision (a) (2) with respect to the lessee's "option of becoming, the owner of the property upon full compliance with the terms of the contract" is substantially fulfilled.
Respondent's "lease" was ingeniously written with an option to terminate, and a statement that the lessee was not to obtain any interest in the automobile. The obvious purpose was to avoid the application of the Automobile Sales Finance Act. Viewed realistically, however, it is apparent that the option to terminate was illusory in view of its prohibitive cost, and the statement that the lessee is not to have any interest in the automobile *927 is contradicted by the fact that the lessee is credited with the value of the automobile at the termination of the lease and is charged with depreciation, a charge normally associated with ownership.
This cleverly worded document, drafted to escape the protection provided by the Automobile Sales Finance Act, enabled respondents to engage in the very evils sought to be remedied by the act. Hidden within this lease there lurked, in addition to the monthly payments, an obligation for this unwary buyer in the amount of $1,850.77 for the nine months that she possessed the car. Such excessive charges would not have been possible had the terms of the agreement been in compliance with the requirements of section 2982, subdivisions (c) and (d) relating to the maximum amount of finance charges allowable and the required refund of unearned finance charges upon prepayment for a "Conditional Sale Contract."
The trial judge, in his summation of the case, made his position very clear regarding the inequity of the lease terms. He said that if he were charged such grossly excessive amounts for the use of a car, he would feel "pretty badly treated." He added that he did not understand why such contracts escaped the coverage of the act. We agree with the trial judge that these excessive charges and the pending foreclosure of the lien on appellant's home to collect them are the very evils that the Legislature intended to prohibit.
The judgment is reversed.
Fleming, J., and Compton, J., concurred.
Respondents' petition for a hearing by the Supreme Court was denied February 3, 1972.
NOTES
[1] Section 2984.2 of the Civil Code reads in pertinent part as follows: "No agreement in connection with a conditional sale of a motor vehicle for the inclusion of title to or a lien upon any personal or real property, other than the motor vehicle which is the subject matter of the conditional sale ... as security for payment of the contract balance, shall be enforceable." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2286407/ | 993 F. Supp. 338 (1998)
PRECISION PRINTING COMPANY, INC., Plaintiff,
v.
UNISOURCE WORLDWIDE, INC., a Delaware Corporation, Defendant.
Civil Action No. 96-151.
United States District Court, W.D. Pennsylvania.
January 30, 1998.
*339 *340 *341 *342 Charles A. Merchant, Goehring, Rutter & Boehm, Pittsburgh, PA, for Plaintiff.
Dale Hershey, Mary K. Austin, Eckert, Seamans, Cherin & Mellott, Pittsburgh, PA, for Defendant.
MEMORANDUM OPINION AND ORDER
D. BROOKS SMITH, District Judge.
Precision Printing Company, a now defunct business forms producer, has sued Unisource Worldwide for alleged acts of fraud, breaches of contract, and, most significantly, antitrust violations of the price-discrimination provisions of the Robinson-Patman Act, 15 U.S.C. § 13(a). Precision contends that Unisource, a major supplier of bulk paper, illegally gave Precision's competitors more favorable prices, increasing Precision's relative raw material costs and thereby making it uncompetitive in the forms marketplace. Precision also alleges that Unisource fraudulently misrepresented that it would give Precision its most favorable prices but failed to do so. Unisource denies all of these allegations and has counterclaimed for money Precision allegedly owes on various unpaid invoices. The parties have filed cross-motions for summary judgment and the case is now ripe for disposition. For the following reasons, I will deny plaintiff's motion and grant summary judgment to defendant.
*343 I. FACTUAL BACKGROUND
Precision Printing Company was in the business of manufacturing and selling printed forms to businesses, banking institutions, health care facilities and other organizations.[1] It operated in the short-to-medium run segment of the market, generally producing 500 to 10,000 forms on any given order. Dkt. no. 25, at 105, 144. Precision's most significant raw material was blank paper, which averaged 55 to 75 percent of the cost of production, and 35 to 45 percent of the net sale price to the customer. Id. at 314, 331. Precision purchased paper from a variety of suppliers, but primarily from Unisource and its predecessor, Copco.[2] Dkt. no. 20, exh. 6, at 64-65, 68; dkt. no. 25, at 107.
Precision's two principal competitors were Business Forms, Inc. ("BFI") and Thornhill Printing, both of which were short or medium-run printers of comparable size. Dkt. no. 25, at 136-137, 144, 324, 328. All three manufacturers produced their product using essentially the same type of machinery, paper and techniques. See id. at 136, 143-44, 147-49, 152, 327.
Unisource is a Delaware corporation with its principal place of business in Columbus, Ohio. Its primary business is selling wholesale quantities of paper to commercial printing companies like Precision and its competitors, for which purpose it maintains a warehouse in Pittsburgh, Pennsylvania. Unisource sells on demand from this warehouse to fill the ad hoc needs of its customers; such transactions are referred to by the parties as warehouse sales. During the time period material to this litigation, Precision purchased all of its non-carbonless paper in this manner. Unisource also sells truckload quantities of paper, either directly from the manufacturer or from a Unisource warehouse outside Pennsylvania, in what are known as direct sales. These transactions typically involve lower prices than warehouse sales. Dkt. no. 20, Dunkle decl. ¶ 3-4, exh. 7, at 27-28. In addition, Unisource operated a "Just-in-Time" ("JIT") plan, under which purchasers could obtain better prices and stabilized paper availability by committing to purchase specified quantities of paper.
In 1994, Unisource added a division known as Rollsource. The function of Rollsource was to service specifically the needs of those members of the web offset printing industry, such as Precision and its competitors, who purchased paper primarily in roll form. Dkt no 25, at 145-46. Rollsource apparently operated in a manner similar to the JIT plan. Precision, however, unlike its competitors BFI and Thornhill, was not given an offer to become a Rollsource customer. Id. at 343. Unisource typically purchased paper from Rollsource to service non-Rollsource customers like Precision, then "internally burdened" the transaction with overhead costs before setting the final price. Dkt. no. 33, exh. E, at 113-14, 153. As a result, those customers who remained with Unisource generally paid higher prices for paper than Rollsource customers paid.
All of Unisource's sales were made pursuant to invoices with "boilerplate" terms and conditions on the reverse sides. Dkt. no 20, Dunkle decl., ¶ 2. Those terms included an integration clause and a contractual, one-year statute of limitations for any claims against the seller. The invoices made no representation regarding how the prices charged compared to the market in general or to any other customer in particular.
Precision Printing developed serious cash flow problems and began to fall behind in paying its paper suppliers sometime around 1992. As a result, some vendors placed Precision on COD status and would not sell product to it except for cash. Unisource, however, worked out payment terms that allowed Precision to continue buying paper while it paid down its past debt, although it *344 refused to take Precision on as a Rollsource customer because of its credit history.[3]See dkt. no. 20, exh. 8 passim; dkt. no. 33, exh. C at 22; exh. E, at 154-55. According to Precision, Unisource also promised to supply its paper needs at a price at or below "market."
Precision alleges that, in early 1995, it became aware that Unisource, contrary to its promise, was charging Precision twenty percent more for paper than the prices charged its competitors, Thornhill and BFI. Dkt. no. 25, at 131. That discovery was the impetus for the filing of this suit.
II. STANDARD FOR EVALUATING SUMMARY JUDGMENT MOTIONS
The standard for granting summary judgment is, twelve years after the Celotex trilogy of cases, well-established. Summary judgment shall be "rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he burden on the moving party may be discharged by showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (internal quotation marks omitted). "[S]ince a complete failure of proof concerning an essential element," id., 477 U.S. at 323-24, on which a party bears the burden of proof at trial establishes that the moving party is "entitled to a judgment as a matter of law," the nonmoving party must establish the existence of every element essential to [its] case. Id.
Once the moving party has satisfied its burden, the nonmoving party is required by Federal Rule of Civil Procedure 56(e) to establish that there remains a genuine issue of material fact. Clark v. Clabaugh, 20 F.3d 1290, 1294 (3d Cir.1994). The nonmovant "may not rest upon mere allegation or denials of [its] pleadings, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is material if it "might affect the outcome of the suit under the governing law ..." id., 477 U.S. at 248, and is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 257.
In determining whether a nonmovant has established the existence of a genuine issue of material fact requiring a jury trial, the evidence of the nonmovant must "be believed and all justifiable inferences are to be drawn in [its] favor." Id. at 255. Whether an inference is justifiable, however, depends on the evidence adduced. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 595-96, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). An inference based upon speculation or conjecture does not create a material factual dispute sufficient to defeat summary judgment. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir.1990). Likewise, "simply show[ing] that there is some metaphysical doubt as to the material facts" does not establish a genuine issue for trial. Matsushita, 475 U.S. at 586.
III. LIABILITY UNDER THE ROBINSON-PATMAN ACT
A. Introduction
Precision contends that Unisource practiced price discrimination in violation of § 2(a) of the Robinson-Patman Act by granting Precision's principal competitors lower prices than it gave Precision.[4] This type of disparate pricing, in which a manufacturer or distributor favors certain of its customers at the expense of others, is known as secondary line discrimination, in contrast to primary *345 line discrimination, in which one seller charges discriminatory prices in order to gain an advantage over its own competitors. See, e.g., Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 584 n. 1 (2d Cir.1987); ABA Section of Antitrust Law, Antitrust Law Developments (hereinafter "ABA Treatise") 446 (4th ed.1997); William C. Holmes, Antitrust Law Handbook § 3.03, at 494 (1997).
"Stated broadly, Section 2(a) of the Clayton Act provides that a seller cannot discriminate in price between purchasers of goods of like grade and quality where substantial competitive injury may result." Holmes, supra, § 3.02, at 483. Although the Act's purpose is simple to state, its interpretation and application are not; indeed, because of its imprecise drafting, numerous courts and commentators have noted that Robinson-Patman is one of the most difficult, if not inscrutable, antitrust laws in existence. As one commentator has written:
[T]he Robinson-Patman Act of 1936[ ] is the most awkwardly drafted of all antitrust legislation. This statute was a roughly hewn, unfinished block of legislative phraseology when it left Congress, and has required much interpretive refinement by the [Federal Trade] Commission and the courts to reveal the contours of its meaning and application. Indeed, so confusing is some of this language that experience in applying its provisions is the only reliable guide for the wise practitioner.
Jerrold G. Van Cise et al., Understanding the Antitrust Laws 56 (9th ed.1986); accord Automatic Canteen Co. v. Federal Trade Comm'n, 346 U.S. 61, 65, 73 S. Ct. 1017, 1020, 97 L. Ed. 1454 (1953) (Frankfurter, J.) ("precision of expression is not an outstanding characteristic of the Robinson-Patman Act"); Robert H. Bork, The Antitrust Paradox 382 (2d ed.1993) (referring to the Act as "the misshapen progeny of intolerable draftsmanship coupled to wholly mistaken economic theory"); Holmes, supra, § 3.02, at 483 (the Robinson-Patman Act is "[t]he most complex and controversial of the antitrust laws"); ABA Treatise, supra, at 429 (the Act's "complex draftsmanship has led to extensive interpretation").[5]
Section 2(a) of the Robinson-Patman Act provides that:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered: Provided, however, That the Federal Trade Commission may, after due investigation and hearing to all interested parties, fix and establish quantity limits, and revise the same as it finds necessary, as to *346 particular commodities or classes of commodities, where it finds that available purchasers in greater quantities are so few as to render differentials on account thereof unjustly discriminatory or promotive of monopoly in any line of commerce; and the foregoing shall then not be construed to permit differentials based on differences in quantities greater than those so fixed and established: And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade: And provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.
15 U.S.C. § 13(a). I will now proceed to analyze the facts presented by this record against the recognized elements of a case arising under the above-quoted statutory provision.
B. The Commerce Requirement
Section 2(a) of the Act makes it "unlawful for any person engaged in commerce, in the course of such commerce, ... to discriminate in price ... where either or any of the purchases involved in such discrimination are in commerce. ..." 15 U.S.C. § 13(a) (emphases added). Thus, the plaintiff must establish three elements to meet the commerce requirement: (1) the defendant must be engaged in interstate commerce; (2) the price discrimination must occur in the course of that commerce; and (3) at least one of the transactions that the plaintiff proffers for comparison to prove discriminatory pricing must have actually moved in commerce; that is, crossed a state line. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195, 200, 95 S. Ct. 392, 42 L. Ed. 2d 378 (1974).[6] As a practical matter, if the third element is satisfied, the first two will be as well. See Liquilux Gas Servs. v. Tropical Gas Co., 303 F. Supp. 414, 416-17 n. 2 (D.P.R. 1969); In re International Tel. & Tel. Corp., 104 F.T.C. 280, 419 (1984); ABA Treatise, supra, at 430 & n. 9.
In any event, Unisource does not dispute, nor could it, that it engages regularly in interstate commerce. The fact that it purchases and sells paper from out-of state manufacturers through warehouses in several states to customers dispersed among those states satisfies this requirement. Moreover, it is clear that Unisource's alleged price discrimination took place "in the course of such commerce." The discrimination Precision alleges occurred in the course of Unisource's regular business of selling paper, not in some isolated transaction unrelated to it, such as the sale of a used forklift from Unisource's warehouse.
That leaves the question, did the goods in at least one of the sales that Precision must compare to prove discriminatory pricing physically cross a state line? In the direct sense, the answer is "no." Precision, its principal competitors and the Unisource warehouse through which the shipments passed are all located within Pennsylvania. From this, Unisource argues that its sales fail the commerce test set forth in Copp. This is only partly correct.
In Copp, the plaintiff was a producer of asphaltic concrete used for surfacing highways and defendants were manufacturers of liquid petroleum asphalt, a key component of plaintiff's product. 419 U.S. at 188-89. Plaintiff alleged that defendants had sold asphalt at discriminatory prices, charging more for the product in places where plaintiff was not a competitor. Id. at 190-91. All of defendant's relevant sales were made inside the State of California, and, due to the extreme bulk and low value of asphaltic concrete, *347 plaintiff could sell its product only inside its home state. Id. at 188-89. Plaintiff accordingly argued that the fact that the asphaltic concrete was used to surface local segments of the interstate highway system caused the sales to be "in commerce."
The Supreme Court disagreed, holding that, under the stringent commerce test set forth in the Act, one or more of the compared transactions must cross a state line. Id. at 200. In so holding, the Court stressed the need for the "facially narrow" language of the Act to be applied in a manner that is "anchored to the economic realities of interstate markets, the intensely practical concerns that underlie the purposes of the antitrust laws." Id. at 198. Thus, the Court opined that the Act reaches "only persons or activities within the flow of interstate commerce the practical, economic continuity in the generation of goods and services for interstate markets and their transport and distribution to the consumer." Id. at 195.
A similar result was reached in Coastal Fuels of Puerto Rico, Inc. v. Caribbean Pet. Corp., 79 F.3d 182 (1st Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 294, 136 L. Ed. 2d 214 (1996). There, plaintiff operated a refined petroleum distribution business in Puerto Rico, which sold, inter alia, bunkering oil used to fuel ships. Defendant operated an oil refinery on the same island. Id. at 186. Plaintiff alleged that defendant practiced price discrimination by selling fuel to plaintiff's competitors at lower prices, eventually forcing plaintiff out of business. The court held that § 2(a) of the Robinson-Patman Act could not be applied because none of the sales had crossed a state line. See id. at 189, 190.
This general rule is refined, however, by the "stream of commerce" doctrine. When a manufacturer ships its goods in interstate commerce to a wholesaler's warehouse for its general inventory, any otherwise intrastate sales the wholesaler then makes to its customers are not considered "in commerce." The stream of commerce is deemed to have been broken. As one court put it:
The flow of commerce ends when goods reach their "intended" destination. In gauging the point of destination courts consider whether goods coming from out of state respond to a particular customer's order or anticipated needs. If so, the sales meet the "in commerce" requirement even though the goods may be stored in a warehouse before actual sale to the buyer. However, goods leave the stream of commerce when they are stored in a warehouse or storage facility for general inventory purposes, that is, with no particular customer's needs in mind.
Zoslaw v. MCA Dist. Corp., 693 F.2d 870, 878 (9th Cir.1982) (citations omitted).[7]
Accordingly, it is generally held that such warehouse sales lose their intrastate character, notwithstanding an intrastate sale, if any of the following three conditions are met: (1) the goods are purchased by the supplier upon the order of a customer with the definite intention that the goods are to go at once to the customer; (2) the goods are purchased by the supplier to meet the needs of specified customers pursuant to some understanding with the customer, even though the goods are not to be delivered to the customer immediately; (3) the goods are purchased by the supplier based upon anticipated needs of specific customers. See, e.g., L & L Oil Co. v. Murphy Oil Corp., 674 F.2d 1113, 1116 (5th Cir.1982); Luzerne & Lackawanna Supply Co. v. Peerless Indus., Inc., 855 F. Supp. 81, 85 (M.D.Pa.1994); Callahan v. A.E.V., Inc., No. 92-556, 1994-2 Trade Cases (CCH) ¶ 70,761, 1994 WL 682756, *7 (W.D.Pa. Sep. 26, 1994) (citing cases); cf. Standard Oil Co. v. FTC, 340 U.S. 231, 237-38, 71 S. Ct. 240, 243-44, 95 L. Ed. 239 (1951) (gasoline stored at bulk facility in anticipation of customers' anticipated winter demands remained in interstate commerce).
Applying this standard, it is evident that none of Unisource's sales to Precision met the commerce requirement. Precision purchased from Unisource's Pittsburgh *348 warehouse on an ad hoc, spot-market basis as its needs dictated. None of the goods it purchased physically crossed a state line between their shipment by Unisource and their receipt by Precision. Except for the few truckload purchases Precision made, which it neither identifies in the record nor relies upon in its price comparisons, all of Unisource's sales to Precision retained their intrastate character.
Unisource's sales to Precision's competitors stand on a somewhat different footing. Those customers commonly purchased by the truckload or through the JIT program, whether from Unisource or Rollsource. Truckload sales were shipped from outside Pennsylvania and thus directly satisfy the commerce requirement. And in order to participate in the JIT program, purchasers had to commit to certain tonnage requirements in advance. Accordingly, all of Unisource's purchases from the various paper manufacturers to supply its JIT requirements were made to meet "the anticipated needs of specific customers," Murphy, 674 F.2d at 1116. As to these sales, the stream of commerce was not broken and the commerce requirement was accordingly met. To recapitulate, all of the competitors' truckload and JIT sales remained in commerce.[8]
C. Price Discrimination
1. Legal Standard
For any claim asserted under § 2(a) of the Robinson-Patman Act to succeed, the plaintiff must adduce evidence of an actual instance of price discrimination. This requirement is straightforward: under the Act, "price discrimination means nothing more than a difference in price charged to different purchasers or customers of the discriminating seller for products of like grade or quality." Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1271 (3d Cir.1995) (citing cases); accord Texaco, Inc. v. Hasbrouck, 496 U.S. 543, 559, 110 S. Ct. 2535, 110 L. Ed. 2d 492 (1990) ("price discrimination within the meaning of § 2(a) is merely a price difference"). The different prices, however, must have been charged at reasonably contemporaneous times. See Zwicker v. J.I. Case Co., 596 F.2d 305, 309 (8th Cir. 1979); Atalanta Trading Corp. v. FTC, 258 F.2d 365, 371-72 (2d Cir.1958) (§ 2(d) case).
2. Facially Disparate Prices
There is no question that Unisource made sales to two or more different purchasers, or that the products sold were of like grade and quality. Precision, Thornhill and BFI all purchased standard grades of roll paper from Unisource. Nor can it be seriously contended that the sales were not reasonably contemporaneous; indeed, the record indicates that at least one pair of sales took place on the same day. Dkt. no. 25, at 243-44.
The record also indicates that the same product was sold at facially different prices. On February 8, 1994, for example, Precision purchased 12 pound white forms bond and 15 pound white forms bond paper from Unisource (Copco), priced at $57.00 and $50.50 per hundredweight, respectively. That same day, BFI purchased the same two types of paper from Rollsource at $46.00 and $38.00, respectively. Id.
Precision also relies on certain invoices, see dkt. no. 25, at 220-23, which most likely document an April 1992 warehouse sale because less than a full truckload of paper was shipped, although it could have been a JIT less-than-truckload sale. If it was only a warehouse sale, then it retained its intrastate character and was not actionable. It is not clear from this record, at least as argued by the parties, whether this, or any, Unisource invoice constituted a discriminatory, "in commerce" sale to a Precision Printing competitor. If such a sale took place, then a facial instance of price discrimination exists there as well. In either event, however, Precision has adduced sufficient evidence of at least one price difference on an "in commerce" (Rollsource) transaction.[9]
*349 3. Sales by Rollsource
For its part, Unisource argues that any sales made by Rollsource must be excluded as a matter of law from the price discrimination analysis. It contends that Rollsource is a separate, independently managed subsidiary and therefore its sales to Precision's competitors cannot be compared to Unisource's sales to Precision (dkt. no. 21, at 17). According to Unisource, unless the parent (Unisource) actively controls the operations of the subsidiary (Rollsource), the subsidiary's separate form must be respected.
I cannot accept Unisource's argument. Rollsource is a division, not a subsidiary, of Unisource, as evidenced by Rollsource's price lists (dkt. no. 33, at UW01023), invoices (id. at UW00561) and Unisource's own admissions in its reply brief (dkt. no. 38, at 8). Thus, there is no separate corporate form to "respect."
Even if Rollsource were a subsidiary, it is questionable whether the Third Circuit would follow the principal case that Unisource relies upon, Acme Refrigeration of Baton Rouge, Inc. v. Whirlpool Corp., 785 F.2d 1240, 1243 (5th Cir.1986). The Acme court held that, "[i]n the absence of evidence that [the parent] actively controlled [the subsidiary] or the terms of the latter's sales, we must conclude that they are not the same seller." The court, however, failed to discuss a key Supreme Court case decided two years earlier, Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S. Ct. 2731, 81 L. Ed. 2d 628 (1984). There, in deciding that a subsidiary could not legally be said to conspire with its parent within the meaning of § 1 of the Sherman Act, 15 U.S.C. § 1, the Court opined:
A parent and its wholly owned subsidiary have a complete unity of interest.... With or without formal "agreement," the subsidiary acts for the benefit of the parent, its sole shareholder. [T]he parent may assert full control at any moment if the subsidiary fails to act in the parent's best interests. ... Antitrust liability should not depend on whether a corporate subunit is organized as an unincorporated division or a wholly owned subsidiary.... The economic, legal, or other considerations that lead corporate management to choose one structure over the other are not relevant to whether the enterprise's conduct seriously threatens competition.
Id., 467 U.S. at 771-72.
This language, although technically dictum in the Robinson-Patman context, was extended to that act in another § 2(a) case, Caribe BMW, Inc. v. BMW, 19 F.3d 745 (1st Cir.1994). There, the First Circuit faced the issue of whether "a firm's wholly owned subsidiary and the firm itself amount to a `single seller' under the Robinson-Patman Act[.]" Then judge Breyer, in a thoroughly reasoned opinion, concluded that they were a single entity for purposes of price discrimination analysis, relying on Copperweld to distinguish earlier contrary authority, including Acme. Id. at 749. The Caribe court also opined that "there does not seem to be any special Robinson-Patman Act purpose that a case-specific `control' inquiry would further. To the contrary, one would not want a seller to be able to defeat the statute's clear objectives by transforming unlawful, into lawful, price discrimination through the creation of a separately incorporated `distributor' that sells to the disfavored customers, whether or not the parent retained "control" over the pricing decisions of the subsidiary." Id. at 750.[10] In the face of this postAcme caselaw, I believe that the Court of Appeals, as well as the Supreme Court, would find Caribe persuasive. I therefore decline to accept Unisource's argument that even the subsidiary form should be respected in this instance.
4. The Functional Availability Defense
a. Introduction
Unisource contends that Precision's Robinson-Patman claim is negated by the "functional availability defense." According to Unisource, Precision had the option to take advantage of the same pricing programs offered to its competitors by participating in direct, JIT or truckload programs, but declined *350 to do so. Thus, Unisource argues, any higher prices that may have been paid by Precision were strictly its own fault and liability cannot attach to Unisource.
The functional availability defense is a judicial graft on § 2(a) and is not explicitly embodied in the text of the statute. ABA Treatise, supra, at 464; Holmes, supra, § 3.04, at 522. Although often referred to as a defense, it really is not a defense at all and is more properly thought of as the functional availability doctrine. As one court described it:
Where a purchaser does not take advantage of a lower price or discount which is functionally available on an equal basis, it has been held that either no price discrimination has occurred, or that the discrimination is not the proximate cause of the injury.
Shreve Equipment, Inc. v. Clay Equipment Corp., 650 F.2d 101, 105 (6th Cir.1981) (citing cases, including Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105 (3d Cir.1980)). In Sweeney, the Third Circuit held that "a uniform pricing formula applicable to all customers is not a price discrimination under the act[,]" as long as the favored "price was available, not only in theory but in fact, to all purchasers." 637 F.2d at 120. The Sweeney court thus held that the plaintiff failed to establish that the defendant's pricing discriminated in violation of the Robinson-Patman Act.
b. Plaintiff's knowledge of the existence of defendant's special pricing plans
A discount is not "functionally available" if the plaintiff did not know about it. See Caribe, 19 F.3d at 752. Here, however, the evidence indicates otherwise. Charles Bacu of Precision and Randy Dunkle of Unisource had discussed arrangements under which Precision would commit to specific quantities of paper in exchange for more favorable pricing, although Precision did not know at that time specifically what its competitors were paying or that they had taken advantage of it. Bacu admitted that Dunkle talked to him about truckload sales and the JIT program. Dkt. no. 20, Exh. 6, at 74, 76. And while Unisource never specifically offered him that program or gave him a price list, Precision was enrolled in a similar program at Brown Paper which did result in a lower price. Id. at 76. Thus, Bacu assumed that it would result in a lower price from Unisource as well. Nevertheless, Bacu told Dunkle that Precision could not avail itself of such a program with Unisource because he was having trouble keeping his commitment under Brown's plan and Precision was unable to commit to a set tonnage of paper per month. Id. at 78. The only reasonable inference from this evidence is that Precision knew that these discounts were available, but chose for its own reasons not to take advantage of them.
The same result obtains for truckload sales. Although Precision did occasionally buy a truckload on occasion in the past, its general policy was to buy paper as needed, not to fill up the warehouse. Id. at 60. That simply was not the fault of Unisource, but was a management decision by Precision.
That leaves only the Rollsource sales, as to which the record does indicate the existence of "in commerce" price differences. There, however, Rollsource declined to take Precision as a customer because of its past due credit history, just as it refused to take any customer with substantial past due balances. See dkt. no 33, exh. F at 24. "Section 2(a) is not violated when the credit decisions are based upon legitimate business reasons." Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319, 1325 (6th Cir.1983) (holding no Robinson-Patman violation when manufacturer refused to extend favorable credit provisions to financially struggling dealer). Here, it was simply not an act of price discrimination to disfavor a buyer with a greater propensity for slow payment and doubtful accounts.
c. Were the favorable prices functionally available to all customers?
The availability doctrine is also limited by the requirement that the favorable prices must be functionally available to all customers. For example, if a manufacturer offers a bargain price on VCRs if the retailer purchases in lots of 100,000 units, that discount is functionally available only to the largest, *351 national chain retailers, not the local, independently owned appliance store. Hence, the discount does not satisfy the requirements of the availability defense. See Federal Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 42-43, 68 S. Ct. 822, 92 L. Ed. 1196 (1948) (availability defense denied where no individual retail grocers ever purchased sufficient quantities of salt to obtain discount pricing). Here, however, by Precision's own admission in its brief "[d]uring the time period of 1990 through 1995, the three companies [Precision, Thornhill and BFI] were of comparable size. All three [were] short to medium run business forms printing companies." Dkt. no. 24, at 5. Thus, Precision was not denied more favorable pricing because of its comparatively smaller size vis-a-vis its competitors, but because of reasons peculiar to Precision Printing itself, specifically its bad credit and inability to commit to purchases in advance.
d. Did a generally available special pricing program exist?
Precision nevertheless argues that the functional availability doctrine cannot be applied on summary judgment because the evidence is controverted as to whether these special pricing programs even existed or their terms were met by those companies receiving the favorable prices. It relies for this contention on the testimony of its competitors' personnel, through which it purports to show that the competitors were not aware that they received any special prices, and on the testimony of one of its own employees through which it seeks to establish that BFI and Thornhill were ineligible for JIT pricing.
On Precision's first point, Mr. Drechsler of Thornhill Printing testified that he had no idea what the JIT discount was or meant. Dkt. no. 33, exh. D at 54-55. He also testified that he participated in no special pricing programs with Unisource. Id. at 38. Drechsler also testified that, although he provided lists of paper quantities that Thornhill was committing to purchase in the future, no one at Unisource asked him to do so. See dkt. no. 37, exh. 15, at 38. Nevertheless, while this witness may have suffered a lapse of memory or been ignorant of the pricing program's terms, the price lists on which he was examined during that phase of his testimony clearly referred to "JIT Warehouse Pricing." Dkt. no. 33, exh. J. UW9320-27. No contention is made that the documents were forged or fraudulent. Accordingly, Precision's reliance on Drechsler's ignorance of the program is unavailing.
Moreover, Thornhill normally purchased paper by the truckload, which Precision did not. Id. at 65-66. That in itself, would justify charging Thornhill a lower price, whether the truckloads were part of a JIT plan or not. If those truckloads came out of Unisource's general inventory, then they were not "in commerce," as already discussed. On the other hand, if they were not warehouse sales, they must have been part of a JIT or similar plan. So, either the lower price was not actionable, or it proves the existence of the very plan Precision denies.[11]
The best argument Precision has against applying the functional availability doctrine is that David Howell, a current Rollsource and former Unisource executive, did not name Thornhill and BFI as JIT customers, as evidenced in the following exchange:
Q. So to your knowledge neither BFI nor Thornhill were participating in a JIT prior to Rollsource?
A. In either of those account situations, I don't think there was ever a firm commitment made to be a preferred source or a single source. ...
Dkt. no. 33, exh. F at 29. Arguably, one could infer from this testimony that Thornhill and BFI were receiving the benefits of JIT pricing without meeting the same terms offered to others, including Precision. That would negate the functional availability doctrine and amount to price discrimination.
Nevertheless, such an inference is negated by the undisputed facts that Precision knew that discount programs were available, and *352 that its competitors were committing to purchase certain tonnages of paper in advance, see dkt. no. 37, exh. 16, at 78. That commitment is what defendant asserts as the sine qua non of the JIT program in its brief and that is precisely what BFI and Thornhill, but not Precision, were able to make and keep. Had Precision not been financially troubled, and had management not made a policy decision to buy paper only on an "as-needed" basis, Precision would have had the benefit of the favorable prices enjoyed by its competitors. There would then have been no disparate pricing, regardless of whether those competitors were "really" eligible for the lower prices, and thus, no violation of the Robinson-Patman Act.
e. Conclusion
Accordingly, I conclude that there is no genuine issue of material fact and that Unisource has satisfied the requirements to assert the functional availability doctrine. There was therefore no price discrimination, and no violation of the Act. For the sake of completeness, however, I will proceed to analyze the other elements of Precision's Robinson-Patman claim.
D. Competitive Injury
Section 2(a) of the Robinson-Patman Act makes disparate pricing illegal only "where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them[.]" 15 U.S.C. § 13(a). In addition, § 4 of the Clayton Act provides a private right of action for treble damages only to "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws." 15 U.S.C. § 15. I will analyze these two standards seriatim.
1. Section 2(a) of the Robinson-Patman Act
The statute provides two ways for a plaintiff to demonstrate competitive harm. First, it can attempt to prove that the price discrimination was of such a character that may substantially "lessen competition or tend to create a monopoly[.]" 15 U.S.C. § 13(a). Second, the plaintiff can adduce evidence showing that the defendant's disparate pricing regime may substantially "injure, destroy or prevent competition with any person who either grants or knowingly receives its benefits, or the customers of either of them[.]"[12]Id. Unlike other federal antitrust statutes, which focus on harm to competition generally, Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S. Ct. 1502, 8 L. Ed. 2d 510 (1962), the Robinson-Patman Act is directed toward protecting individual competitors as well, J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531, 1535 (3d Cir.1990). Accordingly, the Act sets forth what is referred to as an "incipiency standard," meaning that a reasonable possibility of competitive harm, as opposed to demonstrated, actual harm, is sufficient to prove competitive injury. See Falls City Industries, Inc. v. Vanco Beverage, Inc., 460 U.S. 428, 434-35, 103 S. Ct. 1282, 75 L. Ed. 2d 174 (1983).
*353 After many decades of judicial interpretation of the two-part statutory test quoted above, it has become well-settled that competitive injury, as a practical matter, "is usually shown in either of two ways: proof of lost sales or profits, or ... proof of a substantial price discrimination between competitors over time." Feeser, 909 F.2d at 1535 (citations omitted). I will address these two alternate standards in turn.
a. Direct evidence of lost sales or profits
In Feeser, the evidence of lost sales the court found most persuasive was the testimony of the plaintiff's customers to the effect that plaintiff "lost sales because of its inability to match its competitors' prices...." 909 F.2d at 1537. Here, as in that case, there is testimony, in the form of a customer's affidavit, that at least one customer shifted business away from Precision because it was no longer price-competitive. Dkt. no. 25, at 1-2. In response, Unisource points to other evidence that other customers abandoned Precision because it made direct sales in competition with them or because they thought Precision was financially unstable. Precision's evidence is sufficient, nevertheless, for it to raise a genuine issue of material fact on the issue of competitive harm.
b. Evidence of substantial price discrimination over time
This test, which has its roots in Morton Salt, presumes adverse competitive effects where "the price differential is (1) substantial enough to influence a disfavored customer's resale prices; or (2) occurs in a market with low profit margins and intensive competitive conditions." Feeser, 909 F.2d at 1538 (citing Morton Salt, 334 U.S. at 47, 68 S. Ct. at 828-29). "Generally, the longer the duration [of the price discrimination], the more likely injury will be found." In Stelwagon Mfg. Co. v. Tarmac Roofing Systems, Inc., 63 F.3d 1267, 1272-73 (3d Cir.1995), the court held that evidence of price discrimination in the range of 5-25% over three to four years was sufficient to meet this standard.
Here, Precision relies on the affidavit of its expert, Holly Sphar, CPA, who prepared an analysis of the prices charged to Precision and its competitors over the 37-month period from January 1992 through January 1995 and concluded that Precision paid eleven percent more for paper than did its rivals. This report is problematic, however, because it appears to include intrastate warehouse sales in its comparisons. As discussed supra, these transactions are not eligible for comparison because, even if they involve discriminatory prices, intrastate price discrimination is not forbidden by the Robinson-Patman Act. There is no indication in the Sphar report of which, if any, of the alleged discriminatory prices involved "in commerce" transactions, either as Rollsource sales, JIT sales or truckload shipments from Unisource. Rollsource, it must be noted, came into existence only in 1994. Accordingly, plaintiff has not adduced sufficient evidence of substantial price discrimination over time.
2. Section 4 of the Clayton Act
As already stated, there are two parts to the injury requirement in a Robinson-Patman case in which money damages are sought. While the mere likelihood of injury to competition or a competitor will suffice if the plaintiff seeks only an injunction, its entitlement to damages arises under § 4 of the Clayton Act, 15 U.S.C. § 15. Feeser, 909 F.2d at 1539. That section provides a private right of action for treble damages to "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws...." Thus, in order to have standing to bring suit for damages, the plaintiff must show "fact of damage." E.g., Allen-Myland, Inc. v. IBM Corp., 33 F.3d 194, 201 (3d Cir.1994). "The amount of the damage is not important for antitrust standing; it is sufficient that some damage has occurred. There must, however, be some causal link between the damage and the violation of the antitrust laws." Id.
Although "antitrust plaintiffs have not been held to an unduly rigorous standard of proving antitrust injury," Stelwagon, 63 F.3d at 1273, and need only show a reasonable inference to avoid summary judgment *354 under Feeser, 909 F.2d at 1539-40, if the "direct evidence of injury" is insufficient to show that the defendant's antitrust violations, as opposed to other causes, contributed to some extent to plaintiff's injuries, plaintiff may not recover in damages. Stelwagon, 63 F.3d at 1274-1276.
In this case, Precision has produced evidence from which a factfinder could conclude that the plaintiff suffered actual injury, specifically the evidence of lost sales because Precision became uncompetitive in its pricing. Under Feeser, that is sufficient. 909 F.2d at 1540. While defendant has produced evidence that other factors caused Precision to fail, Precision has sufficiently presented a disputed issue of material fact on this point.
E. Summary
Although Precision has raised disputed issues of material fact as to many of the elements of its Robinson-Patman claim, that claim fails in its entirety under the functional availability doctrine. Precision had the opportunity to obtain the lower prices it complains its competitors received, but, for its own reasons, chose or found itself unable to do so. Unisource is entitled to summary judgment on this claim, which will be dismissed with prejudice.
IV. PRECISION'S STATE LAW CLAIMS
In addition to its Robinson-Patman antitrust claim, Precision has also alleged that Unisource made and breached oral promises that it would provide Precision with paper at or below the market price. In the alternative, Precision contends that Unisource never intended to fulfill its promise and is guilty of fraud.
A. Breach of Contract
Precision avers that Unisource made an oral agreement under which it promised to sell paper to Precision at or below "market" price, an agreement Unisource breached when it gave Precision's competitors better pricing. This claim is problematic, for two reasons.
First, all of Unisource's sales to Precision were made pursuant to standard, printed invoices. Dkt. no. 20, Dunkle decl. ¶ 2. These invoices contain inter alia, an integration clause:
14. MISCELLANEOUS. This contract constitutes the entire agreement between Buyer and Seller relating to the goods or services covered hereunder. No modifications shall be binding upon the Seller unless in a writing signed by Seller's duly authorized representative....
Dkt. no. 20, exh. 3. Precision attempts to avoid the effect of this clause, and the parol evidence rule it triggers,[13] by invoking section 2-207 of the Uniform Commercial Code, which provides:
Additional terms in acceptance or confirmation
(a) General rule. A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
(b) Effect on contract. The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(1) the offer expressly limits acceptance to the terms of the offer;
(2) they materially alter it; or
(3) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(c) Conduct establishing contract. Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the *355 writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this title.
13 Pa.C.S.A. § 2207
Section 2-207 provides rules to deal with the "battle-of-the-forms" that often results when the buyer's purchase order and the seller's invoice contain conflicting terms. Those provisions have no application to this case, because there apparently were no dueling forms. Precision points neither to purchase orders nor to any other documents that purport to contravene any of the terms printed on Unisource's invoices.
Even if there were such evidence, under § 2-207(b), Unisource's terms would be "construed as proposals for addition to the contract." Id. Because both parties are merchants, as defined in § 2-104,[14] Unisource's terms would be presumed to become part of the contract, unless they constituted material alterations or Precision lodged a timely objection to their inclusion. The record in this case is devoid of any evidence that Precision ever objected to the integration clause at any time during its course of dealing with Unisource, and Precision does not contend that the clause worked a material alteration of the bargain. Thus, the parol evidence rule is applicable and bars Precision from proving the terms of its alleged oral agreement. See, e.g., Mellon Bank Corp. v. First Union Real Estate Equity & Mortgage Investments, 750 F. Supp. 711, 714 (W.D.Pa. 1990) (Smith, J.) (citing cases), aff'd, 951 F.2d 1399, 1404-08 (3d Cir.1991); Gianni v. R. Russel & Co., 281 Pa. 320, 126 A. 791 (1924).
Second, even if Precision were free from the restraints of the parol evidence rule and could attempt to prove an oral contract, Precision has failed to define the terms of that contract with any real specificity, as required by Pennsylvania law. See, e.g., Seiss v. McClintic-Marshall Corp., 324 Pa. 201, 188 A. 109, 110 (1936). Indeed, Precision cannot even define the meaning of the term "market price;" its principal witness, Charles Bacu, testified that he didn't "know if there is a market price of paper. I never heard of a market price of paper, ever...." Dkt. no. 20, exh. 6, at 92. Precision's best and only direct evidence of any kind of oral contract arises from the following snippet of testimony from Paul Blatnicky:
Q. Did anybody from Unisource tell you that the prices at which Unisource was selling to Precision Printing were at or below the market price?
A. I would say probably Randy Dunkle, yes.
Q. To the best of your recollection, what were the words he used?
A. "Paul, you got the best prices. Paul, we are going to keep you competitive. Paul we are not going to raise your prices this time even though we are raising everybody else's prices because we want you to be more competitive and give us more money.
Dkt. no. 33, exh. C at 68 (emphases added). This is insufficient.
Dunkle's representation is not a promise that Unisource will, for a set period of time, sell Precision all of its paper needs at or below market price, but merely a statement of what Unisource's practice was at the time the statement was made, coupled with vague assurances about the future that do not lend themselves to effective judicial enforcement. Because Dunkle made no enforceable promise, Unisource cannot be held liable for allegedly breaching it.[15]
*356 Accordingly, Precision's breach of contract claim fails and will be dismissed with prejudice.
B. Fraud
Precision has also sued Unisource for fraud, alleging:
16. During the meetings between Plaintiff's representatives and Defendant's representatives, defendant promised that the price charged to Plaintiff for any purchases of wholesale paper products during the years 1993, 1994 and 1995 would be at or below the relevant market price for the particular wholesale paper products.
Dkt. no. 10, ¶ 16. Precision had earlier attempted to raise this issue as a counterclaim in the collection action pending against it in the Allegheny County Court of Common Pleas, but that court denied leave to amend its answer because Precision alleged only "a promise to do something in the future that [was] not kept," dkt. no. 20, exh. 5, an allegation insufficient, without more, to make out a claim of fraud.[16] I agree.
The law of fraud is well-settled. As the late Judge (formerly Justice) Hutchinson put it:
Under Pennsylvania law, fraudulent misrepresentation has five elements, each of which must be proved by clear and convincing evidence. The elements are:
(1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as a proximate result.
Pennsylvania law requires the trial judge to decide as a matter of law before he submits a case to the jury whether plaintiffs' evidence attempting to prove fraud is sufficiently clear, precise and convincing to make out a prima facie case.
Mellon Bank Corp. v. First Union Real Estate Equity & Mortgage Investments, 951 F.2d 1399, 1409 (3d Cir.1991); accord Krause v. Great Lakes Holdings, Inc., 387 Pa.Super. 56, 563 A.2d 1182, 1187 (1989). A mere promise to perform future acts, which promise is not kept, does not amount to fraud, Mellon Bank, 951 F.2d at 1409; Krause, 563 A.2d at 1187, although a promise which the promisor had no intention of keeping at the time he made it may be actionable as fraud. Mellon Bank, 951 F.2d at 1410 (citing cases); Phoenix Technologies, Inc. v. TRW, Inc., 834 F. Supp. 148, 152 (E.D.Pa.1993).
Precision's fraud claim founders, first, on the fact that there is insufficient evidence that any such promise was ever made, as discussed supra. Thus, the first element of fraud a misrepresentation is not satisfied.
Second, as Unisource argues, there is no evidence that its "promise" if in fact one was even made was uttered with the present intent not to perform it. Precision responds that, at the time the statements were made, Unisource knew that it was not performing according to its terms by giving Precision prices at or below market. Accordingly, Precision asserts that a factfinder could infer that the promise was false when made.
I cannot accept this argument, and the following hypothetical illustrates my point. If a merchant says to a customer, "From now on, I will give you prices at or below market," *357 the fact that the merchant is not currently giving the customer the benefit of those prices has no bearing on its present intent to perform the promise. There could exist a whole host of reasons, totally unrelated to fraud, that would explain why the merchant would honestly promise to give superior pricing in the future, notwithstanding the inferior prices it was charging in the present. If the merchant had said, "you have always been given my most favorable prices, and you will continue to receive them in the future," then a claim of fraud becomes more persuasive. As Precision's argument stands, however, it cannot suffice. Precision's evidence simply does not permit the inference of a fraudulent state of mind.
Third, Precision has failed to sufficiently prove that it relied on Unisource's alleged misrepresentations, that is, that it made no special commitment to purchase paper from Unisource on account of its promise. I agree; the testimony of Precision officers and employees Bacu, Jurczak and Frueh indicates that Precision commonly price-shopped when purchasing paper. Dkt. no. 20, exh. 6, at 29-32, 70-72, exh. 8, at 57-58, exh. 10. Moreover, it is clear that Precision sometimes purchased paper from Unisource because other suppliers refused to extend credit to Precision. To the extent that occurred, those purchasing decisions were dictated by Precision's financial difficulties, not by its reliance on Unisource's promises. In the alternative, Precision would have taken the same actions even in the absence of the alleged misrepresentations.[17] Either way, the element of reliance is negated.
Finally, in its brief, Precision attempts to propound a theory at variance from the one alleged in its complaint and discussed supra:
Precision's claim ... is that Dunkle made a false representation when he promised Precision that it would receive the best available price while at the same time Unisource was charging Precision's competitors substantially less ...
Unisource's position [in this litigation] assumes that "market price" defines the industry price from all paper vendors. In this case, "market price" only defines what Unisource was charging its customers in the Pittsburgh area.
Dkt. no. 33, at 26-27. This theory also fails.
The term "market price" is defined as "the price that a commodity brings when sold in a given market; prevailing price." Webster's New World Dictionary 828 (3d coll. ed.1988). While market price could be interpreted to mean the price of paper generally in the Pittsburgh market, it cannot fairly be read to refer to the prices of a single seller in that market, at least in the absence of nearly perfect competitive conditions in which all suppliers charged the same price. Such market conditions were, as the record evidence of disparate prices and price-shopping behavior demonstrates, unknown in the Pittsburgh paper market. For Precision's theory to succeed, it would have to allege that Unisource promised it, not market price or better, but a price at or equal to the lowest price it charged any of Precision's competitors. Aside from the fact that this is not what Precision averred in paragraph 16 of its amended complaint, the record is devoid of sufficient evidence that any such representation was made, except for the testimony, quoted above, that, "Paul, you got the best prices." Even if that statement was made, it was not, as discussed supra, a promise to continue giving Precision the best prices.
I will therefore grant summary judgment to Unisource on this issue and dismiss the fraud claim with prejudice.
V. UNISOURCE'S COUNTERCLAIM AGAINST PRECISION
Unisource has counterclaimed against Precision for $189,072.64 in unpaid invoices, and for a service charge in the amount of $73,738.33. In his deposition, Paul Blatnicky of Precision acknowledged that it had an outstanding account payable to Unisource of $163,700. Dkt. no. 20, exh. 11, at 2, 6-10, 30. Thus, it is undisputed that Precision owes Unisource at least $ 163,700, and Unisource *358 seeks partial summary judgment in this amount. Precision's only response is that it is entitled to a set-off based upon the results of its contract and fraud claims. Because all of Precision's claims are being dismissed on the merits, this argument is unavailing and partial summary judgment will be granted to Unisource in the amount of $163,700. Any monies over and above that amount, of course, remain to be resolved in future proceedings in this case.
ORDER
AND NOW, this 30th day of January 1998, upon consideration of the parties' cross-motions for summary judgment (dkt.nos.20, 23) and the arguments relative thereto, it is hereby ORDERED and DIRECTED that:
1. Plaintiff's motion for summary judgment, dkt. no. 23, is DENIED.
2. Defendant's motion for summary judgment on plaintiff's claims and partial summary judgment on defendant's counterclaim, dkt. no. 20, is GRANTED.
3. Defendant's motion to compel deposition of Holly W. Sphar, dkt. no. 26 is DENIED AS MOOT.
4. Plaintiff's motion for protective order to quash subpoenas issued to third parties, dkt. no. 27, is DENIED AS MOOT.
5. Counsel shall appear in my Pittsburgh chambers on Friday, February 13, 1998, at 9:00 AM for a pretrial/status conference on the remaining issues presented by defendant's counterclaim.
NOTES
[1] Although Precision still exists as a corporate entity, it ceased operations on December 31, 1996.
[2] Much of the paper Precision purchased consisted of carbonless forms paper, dkt. no. 25, at 151, which came directly from Appleton Paper, was priced solely by Appleton, and only passed through Unisource, which acted merely as a sales agent on those transactions. Because Unisource played no part in the pricing of carbonless forms paper, I will not consider sales of that type of paper in my antitrust analysis.
[3] In May 1995, Precision stopped making its debt reduction payments and Unisource filed a collection suit in the Allegheny County Court of Common Pleas, which is docketed at GD 95-20037 and is still pending.
[4] The Robinson-Patman Act is, in actuality, a 1936 legislative amendment of the 1914 provisions of the Clayton Act. See 49 Stat. 1526 (1936); 38 Stat. 730 (1914). Thus, the Clayton and Robinson-Patman acts will be referred to interchangeably, except where the difference is significant.
[5] The Act has been assailed on policy grounds as well, the most frequent criticism being that its prohibitions on price discrimination protect inefficient competitors at the expense of consumer welfare, placing the Act in tension with the remainder of antitrust law. See, e.g., Bork, supra, at 382-94. Indeed, the government, which has responsibility for enforcing the Act's provisions, has largely ignored it in recent times. See Holmes, supra, at 484 (noting that the United States Department of Justice "has been openly critical of the Act for several years and has refrained from actively enforcing it"); ABA Treatise, supra, at 430 ("government enforcement generally has been limited to FTC cases, and FTC enforcement of the Act in the last fifteen years has been minimal"). For purposes of adjudicating this case, of course, such criticism carries no weight; this court's task and its only task absent unconstitutionality is faithfully to apply any statute that Congress has enacted.
[6] This statutorily imposed "in commerce" nexus is a significantly higher burden than that present under the Commerce Clause in general, or the Sherman Act in particular. Id., 419 U.S. at 194-95. The commerce requirement under the Robinson-Patman Act, therefore, is properly viewed as both a substantive and jurisdictional prerequisite for the imposition of liability.
[7] The Zoslaw court acknowledged the Supreme Court's decision in Copp and held, along with two other circuits, that the stream of commerce doctrine retained its viability after that case. Id. at 878 n. 10 (citing cases).
[8] Of course, if Precision's competitors made any "spot" purchases, that is, purchases not covered by a JIT or similar agreement, those sales would, like Precision's, have to he considered intrastate in character.
[9] Although not relevant to the instant discussion, the precise number of discriminatory sales bears heavily on the issues of economic harm and damages.
[10] But see Stephen Calkins, Copperweld in the Courts: The Road to Caribe, 63 Antitrust L.J. 345 (1995) (criticizing Caribe's extension of Copperweld to the Robinson-Patman Act).
[11] Even if the truckload were shipped out of the general inventory of a Unisource warehouse in another state, the fact remains that Precision had the opportunity to buy by the truckload and had done so in the past but declined to avail itself of that purchasing option during the time period relevant to this litigation.
[12] An interesting issue that arises under this language is whether, in a secondary line price discrimination case, the favored competitor must have actual knowledge of the discrimination. The statute, as set forth in the main text, proscribes price discrimination where its effect may be to "prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them[.]" 15 U.S.C. § 13(a) (emphasis added). Preventing competition with the grantor (Unisource) is not an issue here, because this is not a primary line case, and there is no cited evidence in the record that Thornhill or BFI knew they were receiving better prices than Precision was being charged. In order to find competitive injury, then, I must rely upon the language referring to "with customers of either of them," specifically Precision's competition with Thornhill and BFI as the common customers of Unisource. Such a construction of the statutory text is plausible, but it tends to render "knowingly receives" as surplusage, in derogation of long-recognized canons of construction, under which courts should give meaning and effect to every word and phrase in a statute. Applying that canon, it would appear that the "customers of" language was included only to make "tertiary line" cases actionable and not to eliminate the knowledge requirement in secondary line cases. Because neither party raises this issue, and I have found no authority resolving it, I will proceed on the assumption that knowledge on the part of the favored purchaser is not required.
[13] See 13 Pa.C.S.A. § 2202. Precision does not attempt to argue that the integration clause, if a part of the parties' contract vel non, was not "intended ... as a complete and exclusive statement of the terms of the agreement." Id. Thus, to the extent the parol evidence rule applies, as discussed infra, both consistent and contradictory oral evidence must be excluded. See id.
[14] That section provides that a merchant is someone who "deals in goods of the kind[,] or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction...." 13 Pa.C.S.A. § 2104. Comment 2 states that, under § 2-207, "almost every person in business would ... be deemed to be a merchant...." Here, both parties regularly deal in bulk paper, and must therefore be considered merchants within the meaning of this section.
[15] Precision also attempts to use these statements to prove a course of dealing, as permitted by 13 Pa.C.S.A. § 2202(1). Under 13 Pa.C.S.A. § 1205, "[a] course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct." Put another way, the manner in which the parties performed in a previous similar sales transaction provides a basis for interpreting what their contract requires of them under their present contract. Here, however, no evidence is cited or argued to indicate that Unisource ever gave Precision the favorable prices to which it claims it was entitled. Without such evidence of past performance, Precision can only establish a "course of promises," not a course of dealing. This argument, then, is nothing more than an attempt to use parol evidence to prove what Unisource allegedly promised. Course of dealing, which is admissible to explain or supplement even a fully integrated writing under UCC § 2-202, should not be permitted to be used as a "bootstrap" to avoid the stricter provisions of the parol evidence rule for complete and exclusive writings.
[16] This state court holding would raise the question of preclusion if the judgment has become final. Because it is not clear from the record whether it has, I will proceed to decide the issue de novo.
[17] These weaknesses in Precision's fraud theory are further exacerbated by the difficulty, discussed supra in the disposition of the breach of contract claim, of finding that Unisource ever made any specific promise. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2985068/ | January 14, 2014
JUDGMENT
The Fourteenth Court of Appeals
JACOB MORRIS, INDIVIDUALLY AND AS NEXT FRIEND OF DANIEL
CLINT MORRIS, DANIEL “CLINT” MORRIS, REGINA MORRIS, CINDY
STEPHENS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE
OF DANIEL STEPHENS, Appellants
NO. 14-13-01016-CV V.
ELIZABETH NICOLE MARIE NELSON A/K/A BETH NELSON, NICOLE
RENEE TODD A/K/A NIKKI TODD, ASSOCIATED CREDIT UNION OF
TEXAS A/K/A ASSOCIATED CREDIT UNION A/K/A ASSOCIATED CU OF
TEXAS A/K/A ACU OF TEXAS A/K/A ACUTX A/K/A ACUTX INSURANCE
SERVICES, AND CU FINANCIAL GROUP, LLC A/K/A CU FINANCIAL
GROUP A/K/A CU FINANCIAL GROUP L A/K/A CU FINANCIAL GRP LLC
A/K/A CU FINANCIAL, CU FINANCIAL GROUP INSURANCE A/K/A CU
FINANCIAL GROUP LLC, A SUBSIDIARY OF ASSOCIATED CREDIT
UNION OF TEXAS, PROGRESSIVE COUNTY MUTUAL INSURANCE
COMPANY, AND MASON MCMURRAY, Appellees
________________________________
Today the Court heard appellees’ motion to dismiss the appeal from the
order signed by the court below on November 3, 2013. Having considered the
motion and found it meritorious, we order the appeal DISMISSED.
We further order that all costs incurred by reason of this appeal be paid by
appellants.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1161109/ | 961 P.2d 520 (1997)
Mark D. WOJTOWICZ, M.D., Plaintiff-Appellant and Cross-Appellee,
v.
GREELEY ANESTHESIA SERVICES, P.C., Defendant-Appellee and Cross-Appellant.
No. 96CA0604.
Colorado Court of Appeals, Div. II.
November 28, 1997.
Rehearing Denied December 26, 1997.
Certiorari Granted July 27, 1998.
*521 Baker & Hostetler, LLP, Todd L. Lundy, Michael J. Roche, Denver, for Plaintiff-Appellant and Cross-Appellee.
Antonio Bates Bernard, P.C., Brian E. Bates, Ronald L. Antonio, David A. Groom, Denver, for Defendant-Appellee and Cross-Appellant.
Opinion by Judge PLANK.
Plaintiff, Mark D. Wojtowicz, M.D., appeals a declaratory judgment in which the trial court found certain liquidated damages provisions in his employment agreement with defendant, Greeley Anesthesia Services, P.C., (GAS) to be enforceable. GAS cross-appeals that part of the judgment holding other liquidated damages provisions in the agreement to be invalid. We reverse the judgment as to the contract provisions found to be enforceable and affirm as to those found invalid.
In 1992, plaintiff, who practices surgical anesthesia at a hospital in Greeley, Colorado, was hired by GAS, a professional corporation comprised of a majority of the anesthesiologists who practice at that hospital.
GAS collects fees and distributes income for its shareholders and employees. Irrespective of GAS membership, however, the hospital assigns cases on a rotating basis to all board-eligible anesthesiologists on its staff.
The record indicates that GAS bills patients, collects fees, and distributes income as follows: each shareholder is paid $500 for each day worked; GAS operating expenses are paid; all remaining income is distributed to each shareholder as a bonus which is proportionate to services performed. The bonus each shareholder receives generally exceeds the sum collected as base pay.
In July 1993, after plaintiff became a shareholder in the corporation, he and GAS entered into a professional employment agreement. The agreement provides that plaintiff must pay GAS liquidated damages if his employment terminates for any reason and he continues to practice within a 25-mile radius of Greeley during the two-year period following such termination.
On January 12, 1995, plaintiff provided GAS with notice of his employment termination. When GAS sought to enforce the contract, plaintiff sought a declaratory judgment that the non-competition and liquidated damages provisions are invalid and unenforceable.
The trial court declared invalid the contractual provisions which require, as liquidated damages for harm to the corporation's goodwill, a payment of $10,000 and forfeiture of plaintiff's last three months of deferred compensation earned at GAS (the goodwill provision).
Subject to modification of certain definitions, the trial court declared valid and enforceable the contractual provision requiring plaintiff to pay, as liquidated damages for harm to the corporation's profitability, 50 percent of fees generated from practicing anesthesiology in competition with GAS for two years following his employment termination (the noncompetition provision).
This appeal and cross-appeal followed.
I.
Plaintiff contends that the noncompetition provision violates § 8-2-113(3), C.R.S.1997. We agree that the terms of the provision specifying the amount of damages are not enforceable.
A.
Section 8-2-113(3) states:
*522 Any covenant not to compete provision of an employment, partnership, or corporate agreement between physicians which restricts the right of a physician to practice medicine, as defined in section 12-6-106, C.R.S., upon termination of such agreement, shall be void; except that all other provisions of such an agreement enforceable at law, including provisions which require the payment of damages in an amount that is reasonably related to the injury suffered by reason of termination of the agreement, shall be enforceable. Provisions which require the payment of damages upon termination of the agreement may include, but not be limited to, damages related to competition. (emphasis added)
The trial court in this case acknowledged that a federal district court had recently ruled that, under this statutory language, a clause substantially identical to this noncompetition provision was invalid. See Turner v. Four Corners Heart Clinic, P.C., (94 N 1394, January 17, 1995)(D.Colo.1995). However, the trial court here noted that such decision was not binding authority, that the principal basis for that decision seemed to be that liquidated damages were not reasonably related to actual damages, and that the facts of the present case "are simply different" because "the certainty and extent of damage to [GAS] are much clearer."
The interpretation of a contract is a matter of law, which we review de novo. Union Insurance Co. v. Houtz, 883 P.2d 1057 (Colo. 1994). Similarly, interpretation of a statute is a question of law, and an appellate court is not bound by the trial court's interpretation. Colorado Division of Employment & Training v. Parkview Episcopal Hospital, 725 P.2d 787 (Colo.1986).
Here, although both parties agreed to the noncompetition provision of the contract, the statute permits enforcement of that provision only as to damages "reasonably related to the injury suffered by reason of termination of the agreement." See Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo.1991) (court's primary task in construing statute is to give effect to legislative intent and, to discern that intent, a court should look first to the plain language of the statute).
B.
Here, the parties agreed that, if plaintiff competes with GAS following termination of his employment, GAS will suffer harm in several ways, including lost profits.
The agreement expressly provides that plaintiff:
shall be free to engage in the practice of medicine in competition with the Company, except upon so competing with the Company, the Employee shall be obligated to pay the Company damages related to that competition in an amount reasonably related to the injuries suffered by the Company by reason of such competition.
The trial court found that the intended purpose of the noncompetition provision was "to discourage termination of employment without departure from the area." However, it held that such purpose was not contrary to public policy because the statute "specifically authorizes damages relating to competition," and such provisions "must necessarily discourage the setting up of rival practices."
The record contains conflicting evidence, including expert testimony, as to the amount of damages GAS might suffer if plaintiff breached the agreement. Based upon the possibility that GAS and its shareholders might lose future profits if one of several hypothetical situations occurred, the trial court concluded that the noncompetition provision of the agreement provides for damages in an amount that is reasonably related to the injury.
However, a damage award cannot be based on speculation or conjecture. Graphic Directions, Inc. v. Bush, 862 P.2d 1020 (Colo.App.1993). A claim for future profits may not be sustained by evidence which is speculative, remote, imaginary, or impossible of ascertainment. Damages for lost profits are measured by the loss of net profits, meaning net earnings or the excess of returns over expenditures, but not lost gross profits or gross sales revenues. Lee v. Durango Music, 144 Colo. 270, 355 P.2d 1083 (1960).
*523 The trial court's conclusion as to the noncompetition provision is based on several theories of future lost profits which do not measure net earnings. The record indicates that net profits to GAS and its shareholders remained essentially the same as they were prior to the termination of plaintiff's employment contract. Thus, the evidence was insufficient, as a matter of law, to support the trial court's conclusion as to this issue. See Graphic Directions, Inc. v. Bush, supra.
Contrary to the trial court, we conclude that the noncompetition provision of the contract, which required plaintiff to pay 50 percent of his fees to GAS for two years, provides for damages that are not "reasonably related to the injury suffered" by GAS by reason of the termination of its contract with plaintiff. Hence, the language of the provision specifying the amount of damages was not enforceable under the statute.
We also conclude, as a matter of law, that the fee percentage set as liquidated damages in the noncompetition provision is disproportionate to any possible loss incurred by GAS. See Rohauer v. Little, 736 P.2d 403 (Colo.1987). Thus, the noncompetition provision is also an unenforceable penalty at common law.
Based on the foregoing, we decline to address plaintiff's remaining contentions on appeal.
II.
On cross-appeal, GAS contends that the trial court improperly shifted the burden of proof and thus erred in invalidating the contractual provision which required, as liquidated damages for harm to the corporation's goodwill, payment of $10,000 and forfeiture of certain deferred compensation plaintiff earned at GAS. We disagree.
The parties agreed that, if plaintiff were to compete with GAS following termination of his employment, then GAS would suffer harm to its goodwill.
In the goodwill provision, the parties agreed to the following:
To compensate the Company for the harm to its goodwill, its position as a service provider and for its lost training time and effort, the Employee shall pay the amount of Ten Thousand Dollars ($10,000) and shall immediately forfeit any amount that might otherwise be due the Employee as Deferred Compensation....
At trial, both parties presented extensive evidence, including expert testimony, as to the issue of actual damages. The trial court found that:
There was no convincing evidence of any real harm to defendant's goodwill or its position as a service provider. The preponderance of the evidence is that no training was provided to plaintiff by defendant.
The trial court determined that the liquidated damages portions of the goodwill provision were not enforceable because GAS suffered no harm to its good will and such damages were not reasonably related to its actual injury. That conclusion has support in the record, and thus, we will not disturb it on review. See Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).
We conclude that the liquidated damages portions of the goodwill provision are also so disproportionate as to constitute an unenforceable penalty as a matter of law. See Rohauer v. Little, supra.
The portion of the judgment declaring the noncompetition provision valid and enforceable is reversed. The portion of the judgment declaring the good will provision unenforceable is affirmed.
BRIGGS and TURSI,[*], JJ., concur.
NOTES
[*] Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1997. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1307794/ | 327 Mich. 222 (1950)
41 N.W.2d 354
In re HALLEY.
Calendar No. 44,435.
Supreme Court of Michigan.
Writs dismissed March 1, 1950.
Hathaway & Latimer, for petitioner.
Stephen J. Roth, Attorney General, Edmund E. Shepherd, Solicitor General, and Robert A. Cavanaugh, Prosecuting Attorney, for people.
CARR, J.
The petitioner, hereinafter referred to as the defendant, instituted this proceeding to obtain his release from the State prison of southern Michigan. Based on the application filed, a writ of habeas corpus directed to the warden of the prison was issued, with accompanying writ of certiorari to the bureau of pardons and paroles of the State of Michigan. Returns to the writs have been filed.
*223 From the record it appears that defendant was convicted by a jury in the circuit court for the county of Muskegon under an information charging gross indecency, and was sentenced on the 27th of June, 1947, to imprisonment in the State prison of southern Michigan for not less than 6 months nor more than 5 years. He was paroled on January 16, 1948, the parole being subject to the usual conditions as to conduct and to a special condition with reference to associations with young boys. On June 2, 1948, a warrant was issued for defendant's arrest on a charge of having violated his parole, and he was returned to the prison.
Defendant alleges in the petition filed by him in this Court that he was not given a hearing before the parole board as required by CL 1948, § 791.38 (Stat Ann 1949 Cum Supp § 28.2178). The return filed by the board discloses that it acted on statements made by defendant, and on information furnished to it by the parole officer. It is claimed that such action was taken in good faith and in the belief that there was no question as to defendant's conduct being in violation of the terms of his parole. It was further stated in the return, however, that if defendant desired a formal hearing his request would be granted.
By supplemental return to the writ of certiorari the bureau of pardons and paroles certifies that on the 19th of September, 1949, the parole board issued to the defendant a certificate of parole and released him under conditions which he accepted. The parole, certified copy of which is attached to the return, specified that it would be terminated on the making by him of a single report. Such condition was complied with, and on the 17th of October, 1949, the defendant was given a final discharge from his sentence and the parole on which he had been previously released. It thus appears that the questions *224 raised by defendant in his petition have become moot. Having been granted his release from imprisonment, an order of the nature sought by him in his application for discharge on habeas corpus and certiorari would serve no useful purpose. A determination by this Court as to his right to the order sought has become unnecessary. People v. Maguire, 115 Mich. 65; Templeton v. Grajewski, 258 Mich. 68.
An order will enter dismissing the writs.
BOYLES, C.J., and REID, NORTH, DETHMERS, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1307797/ | 256 Wis. 398 (1950)
MADIGAN, Appellant,
vs.
CITY OF ONALASKA and others, Respondents.
Supreme Court of Wisconsin.
January 12, 1950.
February 7, 1950.
*400 For the appellant there were briefs by Hale, Skemp & Nietsch and James J. Bannen, all of La Crosse, and oral argument by Mr. Quincy H. Hale and Mr. Bannen.
*401 For the respondents there was a brief by Bosshard & Arneson and Steele, Mau & Toepel, all of La Crosse, and oral argument by Philip G. Arneson.
A brief was filed on behalf of the Wisconsin Press Association by Roberts, Roe & Boardman of Madison, as amicus curiæ
FAIRCHILD, J.
"The practice of resorting to motions for summary judgment came into being to prevent delay in the entry of a judgment due to the interposition of unfounded, false, or frivolous answers." McLoughlin v. Malnar (1941), 237 Wis. 492, 495, 297 N.W. 370. In the case at bar the answer of the respondent merely stated a conclusion that the La Crosse County Record did not have sufficient circulation to enable it to qualify as the official newspaper of Onalaska. However, appellant's remedy was not a motion for summary judgment; it was one to make more definite and certain. The procedure provided by sec. 270.635, Stats., the summary-judgment statute, is not calculated to supplant the demurrer or motion to make pleadings more definite and certain. The proceeding is aimed at a sham pleading which is without merit. McLoughlin v. Malnar, supra. Under that statute the court is concerned with whether an issue exists which ought to be tried. If the court upon the showing made deems that sufficient appears to entitle the other party to a trial or that by demurrer or motion to make a pleading more definite and certain the real issue may be brought forward, the motion for summary judgment should be denied. For then, "the trial, and not the pleadings, must settle the dispute in [the] case." Van Der Werken v. Katz (1929), 227 A.D. 820, 237 N. Y. Supp. 913.
Furthermore, plaintiff's affidavit in support of summary judgment is inadequate. He is relying on a conclusion of law that his newspaper is legally qualified. He states, "that the said La Crosse County Record was at all times and is now a legal newspaper qualified in all respects to be the official newspaper *402 for the city of Onalaska, Wisconsin." Although a controlling fact so far as its qualification is concerned is the existence of a "bona fide paid circulation to actual subscribers of not less than three hundred copies at each publication," he states no evidentiary facts in that regard. The law is well established that such a statement cannot support a summary judgment. Sec. 270.635 (2), Stats.; Schau v. Morgan (1942), 241 Wis. 334, 6 N. W. (2d) 212. Our conclusion is that the trial court properly denied the motion for summary judgment.
The parties have argued vigorously the question of where the Holmen Times is published. It is conceded that the Holmen Times is first distributed to the public at Holmen. A study of the cases convinces us that a newspaper is published at the place at which it is first distributed to the public regardless of the place of printing. Bardwell v. Clinton (La. App. 1938), 180 So. 148; State v. Bass (1903), 97 Me. 484, 54 A. 1113; In re Gainsway (1910), 123 N. Y. Supp. 966; see also Drainage Dist. No. 9 v. Merchants' and Planters' Bank (1928), 176 Ark. 474, 2 S. W. (2d) 1079; People v. Read (1912), 256 Ill. 408, 100 N.E. 230; Addison v. Amite City (La. App. 1935), 161 So. 364. Therefore, the only question to be determined below will be whether the La Crosse County Record has the requisite circulation.
By the Court.Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1094255/ | 444 So.2d 625 (1983)
STATE of Louisiana, Plaintiff-Appellee,
v.
Kenneth GUIN, Defendant-Appellant.
No. CR83-133.
Court of Appeal of Louisiana, Third Circuit.
November 9, 1983.
*627 Richard V. Burnes, Alexandria, for defendant-appellant.
Leonard K. Knapp, Jr., Dist. Atty., and Robert R. Bryant, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
Before GUIDRY, CUTRER and DOUCET, JJ.
DOUCET, Judge.
On November 17, 1982, the defendant, Kenneth Guin, was convicted by a twelveperson jury of attempted second degree murder, in violation of LSA-R.S. 14:27 and 14:30.1, and aggravated rape, in violation of LSA-R.S. 14:42. On December 9, 1982, he was sentenced to serve fifty (50) years at hard labor for the attempted second degree murder conviction, and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence for the aggravated rape conviction. Defendant appeals.
Ms. Barbara Joe Jacob, a 20 year old single girl, shared an apartment with her brother in Westlake, La. The defendant, Kenneth Guin, known to most of his friends as "Bear", was co-worker of Ms. Jacob. He also happened to live nearby her apartment in Westlake. As a payroll clerk for the company, Ms. Jacob was acquainted with the defendant, "Bear". She testified that she had hired him into the company[1] and saw him two to three times a week. She admitted that on numerous occasions he had asked her for a date, but she had always turned him down.
On or about April 16, 1982, Ms. Jacob was at her apartment, when, at about 2:00 P.M., the defendant came by. He asked the victim if she would take him to a nearby *628 location in Moss Bluff so that he could pick up his car. At first Ms. Jacob was hesitant, as she had plans for the afternoon, but the defendant persisted and she agreed.
After entering the Moss Bluff area, the defendant directed Ms. Jacob to turn down a dirt road. After traveling along this road for a short distance, the defendant pulled out a knife and forced the car into the roadside ditch. He then reached over and dragged the victim, by the hair, across the console and out the passenger side of the vehicle. While staying close behind, the defendant ordered her to walk into the wooded area, occasionally shoving her on the back. Upon entering a secluded area where the grass and weeds were matted down, the defendant stripped the victim of all her clothing, took off his shirt and pushed her on the ground. The victim, now naked and laying on the defendant's shirt, was sexually abused and raped[2] by the defendant. After the sexual act, the defendant strangled the victim into unconsciousness. When she regained consciousness, the defendant was not around. Ms. Jacob's neck was severely lacerated with twenty (20) to thirty (30) cuts across the throat. Naked and bleeding, the victim found her way to the roadway and was discovered by a deputy sheriff. The police, based upon the description and name given by the victim, subsequently arrested the defendant, Kenneth Guin.
The Grand Jury of Calcasieu Parish returned a two count indictment against the defendant charging him with the crimes of aggravated rape in violation of LSA-R.S. 14:42[3] and attempted second degree murder in violation of LSA-R.S. 14:27[4] and *629 14:30.1[5]. The defendant was found guilty on November 17, 1982, on both counts charged in the indictment. On December 9, 1982, the defendant was sentenced to life in prison without benefit of probation, parole or suspension of sentence for the aggravated rape conviction. He was sentenced to fifty (50) years at hard labor on the attempted second degree murder conviction. Sentences were to run concurrently. It is from these convictions the defendant has, upon this appeal, perfected eleven (11) assignments of error.[6]
ASSIGNMENTS OF ERROR
1. The trial court erred in permitting the State to amend the grand jury indictment, over the objection of the defendant, so as to change offenses charged by amending the date from March 16, 1982, to April 16, 1982.
2. The trial court erred in examining prospective jurors as to their general qualifications out of the presence of the defendant and over his objection.
3. The trial court erred in conducting a voir dire examination of the prospective jurors in private bench conference prior to the defendant having been brought into the courtroom and out of the hearing of counsel.
4. The trial court erred in failing to require the sheriff to account for service or attempted service on absent and unexcused petit jury veniremen.
5. The trial court erred in denying defendant's request for attachment of absent and unexcused petit jury veniremen as required by LSA-C.Cr.P. art. 783.
11. The trial court erred in overruling the defendant's motion for a mistrial.
14. The trial court erred in permitting a hearsay statement that the alleged victim identified the defendant's clothing.
16. The trial court erred in permitting the prosecutor and a State witness to improperly identify physical evidence so as to give an impression as to where it was located.
17. The trial court erred in refusing the defendant's motion for mistrial on the ground that the court had made a comment on the evidence.
18. The trial court erred in overruling the defendant's objection to the inclusion of the words "or to inflict great bodily harm" in the charge which the court gave defining attempted second degree murder.
19. The trial court erred in refusing to charge the jury that a unanimous verdict is required to convict the defendant.
ASSIGNMENT OF ERROR NO. 1
The defendant argues that the trial court erred by allowing the State to amend the grand jury indictment as to the date of the offenses charged. The original indictment mistakenly indicated the offenses occurred on March 16, 1982, where it should have read that the offenses occurred on or about April 16, 1982, as it was amended.[7]
On November 9, 1982, before Judge L.E. Hawsey, Jr., the State moved to amend the indictment, as to the date the alleged offenses were committed, from March 16, 1982, to April 16, 1982. Counsel for the *630 defendant argued that the amendment was improper and the court denied the amendment. On November 12, 1982, the State was allowed to argue in favor of the amendment on a rehearing. Based on the arguments heard from both the State and the defendant, the court ruled to allow the amendment showing the date of April 16, 1982, as the date of the occurrence of the alleged offenses.
It is clear that the district attorney has the power and authority to amend grand jury indictments, both as to amendments of form and as to amendments of substance. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Bluain, 315 So.2d 749 (La.1975). This power is controlled by LSA-C.Cr.P. art. 487.[8] This article indicates that an amendment as to form may be done at any time and that an amendment as to substance is proper if done prior to commencement of trial. Based on this statutory authority and the facts of this instance, it makes no difference whether the amendment was as to form or substance, since both would be considered timely and properly amended under article 487.
In any event, the date and time of the commission of an offense need not be alleged in the indictment, unless the date or time is essential to the offense. (See LSA-C.Cr.P. art. 468).[9] A mistake respecting the date on which an offense occurred has been held to be a defect of form when not essential to the offense. State v. Lawson, 393 So.2d 1260 (La.1981); State v. Dye, 384 So.2d 420 (La.1980); State v. Drew, 360 So.2d 500 (La.1978). The dates are not essential to the offenses charged here. Therefore, based on LSA-C.Cr.P. art. 487, supra, the amendment could have been made at any time. The defendant's assignment of error No. 1 is without merit.
ASSIGNMENT OF ERROR NOS. 2 AND 3
Both of these assignments concern the trial court's examination of prospective jurors and can be dealt with together.
On the morning of November 15, 1982, court was convened with Judge W. Ellis Bond presiding. Roll was called to determine which of the petit jury veniremen were present and which were absent. Prior to the State calling a particular case, the judge informed the members of the venire of their purpose and the basic qualifications they must have.[10] He then informed *631 them that there are certain instances where a hardship may warrant the excusing of a member of the venire from jury service. Those members of the venire not qualified to be jurors or those having a hardship were requested to approach the bench, one at a time, so that the judge could evaluate their situation. Defense counsel then objected and argued that the defendant should be present when the judge is considering excusing potential jurors. The defendant bases his argument on LSA-C. Cr.P. art. 831[11] which states in pertinent part:
A defendant charged with a felony shall be present:
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror.
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced.
However, the Louisiana Supreme Court has stated on numerous occasions that the trial court is authorized to excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. LSA-C.Cr.P. art. 783[12]State v. Brown, 414 So.2d 726 (La. 1982). A defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Lowdins, 412 So.2d 1349 (La.1982); State v. Meriwether, 412 So.2d 558 (La. 1982); State v. Cass[*], 356 So.2d 936 (La. 1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 258 La. 801, 248 So.2d 295 (1971). A juror is not "called" or "examined" within the meaning of LSA-C.Cr.P. art. 831(3) until he is called for examination in the trial of that particular defendant. The defendant need not be present when the trial judge excuses prospective jurors before his own case is called for trial. Lowdins supra; Meriwether, supra; Williams, supra; State v. McGuire, 254 La. 560, 225 So.2d 215 (1969).
In this case, the roll was called for the jurors and they were afforded the opportunity to submit special reasons for being excused. In accordance with the aforementioned jurisprudence, the trial court *632 acted properly. The potential jurors were not yet sworn to a particular case and, therefore, could be excused from the petit jury venire by the trial court at anytime prior to such swearing. Accordingly, assignments Nos. 2 and 3 are without merit.
ASSIGNMENTS OF ERROR NOS. 4 AND 5
In these assignments the defendant argues that the trial court erred by failing to account for, and attach, the absent and unexcused petit jury veniremen.
On the issue of requiring the sheriff to account for service or attempted service, the judge gave an explanation to defense counsel as to why petit jury veniremen were absent. Also, as indicated in the trial court's minutes, there was an accounting by the sheriff of who was and who was not served.
In addressing whether or not the trial court erred in denying the defendant's request for attachment of the absent and unexcused petit jury veniremen, one should note the controlling language of LSA-C. Cr.P. art. 783, supra. The article indicates that the court may order an attachment of absent and unexcused petit jury veniremen, thus the decision is left to the discretion of the trial court. The jurisprudence construing article 783 is well established that the defendant in a criminal trial has no right to demand attachment of absent jurors when a sufficient number to form a panel is present. State v. Morgan, 315 So.2d 632 (La.1975); State v. Witherspoon, 292 So.2d 499 (La.1974); State v. Jugger, 217 La. 687, 47 So.2d 46 (1950). There were sufficient persons to form the jury panel in this case. The defendant has failed to allege or show any evidence of material prejudice resulting from the failure to attach the absent veniremen. Assignments Nos. 4 and 5 are without merit.
ASSIGNMENT OF ERROR NO. 11
In this assignment the defendant argues that the State posed a "leading question" to the victim. The nature of the question was such that it referred to one of the critical elements necessary for any rape conviction, that being "penetration". The defendant feels a mistrial should have been granted based on the following colloquy:
Q: Then what happened?
A: And, then he startedHe putHe took his fingers and he was pushing his penis into me.
Q: Had he taken his clothes off at any time?
A: Well, the only time he took off was when he took off his shirt. But, I had heard his pants unzip when I was on the ground.
Q: And, he penetrated you at this time?
A: Yes, he did.[13]
The trial court sustained the objection and asked that the assistant district attorney rephrase his question.
A leading question is one which suggests to the witness the answer they are to deliver; ordinarily, such questions are prohibited when posed to one's own witness unless the witness is hostile or unwilling. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Carthan, 377 So.2d 308 (La.1979).
In this instance the question does appear to be leading. However, as pointed out by the State, it merely restates what the witness' earlier testimony had been. Though it may not have been proper, it certainly was not grounds for a mistrial. LSA-C. Cr.P. art. 775[14] provides in part:
*633 A mistrial may be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by article 770[15] or 771[16].
A mistrial is a drastic remedy and except in instances in which it is mandatory, is only warranted if substantial prejudice results which would deprive the defendant of a fair trial. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tribbet, 415 So.2d 182 (La.1982). The determination of prejudice lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Tribbet, supra; State v. Douglas, 389 So.2d 1263 (La.1980).
Leading questions are not the type of prosecutorial error which diminish the reliability of a jury's verdict. Ms. Jacob's testimony, as well as the medical evidence and testimony, clearly show sexual penetration. Only when there is clear abuse of discretion which prejudices defendant's rights will a conviction be reversed because of leading questions. State v. Felde, 422 So.2d 370 (La.1982); State v. Vanderhoff, 415 So.2d 190 (La.1982). The defendant has failed to show any prejudicial effect the statement had on his defense. Although counsel should not be permitted to mold the witness' testimony, a verdict should not be reversed in the absence of a clear abuse calculated to prejudice the accused's rights. State v. Jackson, 419 So.2d 425 (La.1982); State v. Swift, 363 So.2d 499 (La.1978). This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 14
In this assignment the defendant argues that a hearsay statement was improperly allowed into evidence. During the course of the prosecution's case Deputy Sheriff Babin was questioned as follows:
Q: Now, were you involved any further in this particular case, sir, after that particular date?
*634 A: Yes, sir.
Q: How so?
A: The victim, after her stay in the hospital, she was asked to come to our office. We showed her the clothing which you just showed me which she I.D.'d...
The defendant objected, arguing that the statement was hearsay. The trial judge overruled the objection, however, the record reveals that Deputy Babin did not affirmatively testify as to the identification after the objection was interposed.
Generally, hearsay is defined as an out-of-court statement introduced to prove the truth of its content. State v. Chaney and State v. Herman, 423 So.2d 1092 (La.1982); State v. Spell, 399 So.2d 551 (La.1981). LSA-R.S. 15:434 states the general rule that hearsay evidence is inadmissible. However, it is recognized that when inadmissible hearsay is improperly introduced at trial, which is merely cumulative of other properly introduced testimony, it is harmless error. State v. Parker, 425 So.2d 683 (La.1982); State v. Vanderhoff, supra; State v. Spell, supra.
The victim, Ms. Jacob, had previously identified every article of clothing referred to by the deputy in his statement. It is clear that the statement was merely cumulative in showing that the victim recognized certain articles worn by the defendant. There was no prejudice to the defendant.
ASSIGNMENT OF ERROR NO. 16
The defendant objected to the State's questioning of an expert witness as to the markings on an envelope located in the sex kit submitted to the expert for analysis. The envelope in question contained a hair of human origin recovered from the cervix of the victim and was so marked on the envelope.
The defendant argues that the testimony sought was not within the personal knowledge of the witness and not within his expertise. The court overruled the objection, however, the response concerning the markings, as indicated on the envelope, was never made. Without responding to what was marked on the envelope there is no alleged error to analyze. This assignment has no merit.
ASSIGNMENT OF ERROR NO. 17
During the prosecutor's direct examination of an expert witness an objection was made as to his testifying on matters not within his personal knowledge. This is the subject of assignment of error No. 16, supra. During the course of the objection, the following colloquy occurred:
Q: All I want to know is where this particular item came from, not any opinions of yours?
A: The envelope was labeled hair...
MR. BURNES: ... Excuse me, Your Honor. Your Honor, that's the objection that I made. I don't have any objection to this man's expertise. I stipulated to it. I know him. I've examined him in cases before. But, he's not testifying now identifying the object. He's trying to say what someone else observed about the object. Not what he observed, but what someone else wrote on the ..
THE COURT: ... With the testimony of the doctor in connection with the preparation of the crime kit...
MR. BURNES: ... I don't want to help...
THE COURT: ... He may...
MR. BURNES: ... the State try their case, Your Honor.
THE COURT: But, I must consider all prior testimony in connection with this objection also. I'll overrule the objection.
MR. BURNES: Your Honor, I'll respectfully object. And, I think that the statement Your Honor just made about the doctor's testimony constitutes a comment on the evidence in the presence of the jury. I respectfully object to it and I move for a mis-trial.
THE COURT: I don't think I commented on what the doctor testified to, Mr. Burnes. I attempted to carefully *635 refrain from doing so. Your motion is denied.
The defendant feels the trial court erred in denying his motion for a mistrial on the grounds that the court had made a comment on the evidence. The defendant feels that LSA-C.Cr.P. arts. 772 and 806[17] are applicable to the situation at hand. LSA-C.Cr.P. art. 772 prohibits any comment upon the evidence in the jury's presence; however, a ruling on the admissibility of evidence and the remarks by a trial judge giving reasons for his ruling on objections are not objectional as comments on the case unless such remarks are unfair or prejudicial. State v. Edwards, 420 So.2d 663 (La.1982); State v. Williams, 397 So.2d 1287 (La.1981); State v. Toomer, 395 So.2d 1320 (La.1981); State v. Quincy, 363 So.2d 647 (La.1978). The trial judge did not comment on, or recapitulate evidence, nor repeat testimony of a witness. Nor did he give an opinion of what had been proved, not proved, or refuted. The remarks were not comments on the evidence; however, even if they were, defendant has shown no unfairness or prejudice in these expressions. Assignment No. 17 is without merit.
ASSIGNMENT OF ERROR NO. 18
The defendant alleges the trial court erred in including in the jury charge the words "or to inflict great bodily harm" when defining attempted second degree murder. The pertinent part of the charge reads:
I will now instruct you on count one, attempted second degree murder. Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. An attempt is defined as follows: A person who has a specific intent to commit a crime and who does an act for the purpose of and tending directly toward accomplishing his object is guilty of an attempt to commit the crime intended.
There is no dispute that the words "or to inflict great bodily harm" is part of the second degree murder statute.[18] The charge here is that of attempted second degree murder and deals with the specific intent as defined in the attempt statute.[19] When the attempt statute is invoked and the charge is attempted second degree murder, it is required that the person have the specific intent to kill a human being. Having specific intent to inflict great bodily harm and then only inflicting great bodily harm cannot be construed as attempted second degree murder.
The defendant relies heavily on the case of State v. Butler, 322 So.2d 189 (La.1975) wherein the Louisiana Supreme Court reiterated that specific intent to kill is an essential element of attempted murder.
The State claims Butler is distinguishable on its facts. In Butler, the evidence the jury found credible proved an aggravated battery not an attempted murder. The evidence indicated that there was not a specific intent to kill. Also, in the closing arguments the prosecutor argued that the specific intent to inflict great bodily injury was sufficient for a conviction of attempted murder. The defendant was not permitted to argue in his closing arguments that a specific intent to kill was required to convict of attempted murder. While it is admitted that the inclusion of the term "or to inflict great bodily harm" was improper (and included at the State's request), the State contends the circumstances of the case do not require a reversal.
With reluctance, we are obliged to agree with argument of defense counsel. The reason for reservation is that the evidence is so overwhelming as to the specific intent *636 of the defendant to kill and his incarceration will not be affected by resolution of this issue. Nevertheless, the law is clear and well established that attempted murder requires specific intent to kill; specific intent to cause great bodily harm will not suffice. State v. Butler, supra; State v. Strother, 362 So.2d 508 (La.1978). In the present case, as in Butler, defense counsel objected to the charge as being improper, nevertheless, the improper instruction was maintained. According to Butler, the theory of harmless error can not permit affirmance of a conviction which results from such a substantial error of law. The reason for the aforesaid rule was set forth in Butler as follows:
Fundamental to American law are the principles here applicable. The state through its legislature has defined the conduct constituting particular offenses, with particular consequences (sentences). To secure conviction for any such offenses, the state through its prosecutors must charge the accused with a particular crime or crimes and prove the accused's guilt of the legislatively-defined crime(s) beyond a reasonable doubt. The jury with proper instructions of law is the exclusive arbiter of the innocence or guilt of the crime charged. The courts are constitutionally bound to assure that those accused before our courts are tried in accordance with law and to reverse, where substantial error of law is committed.
To suggest that no substantial error of law occurs, where the jury was in effect instructed that a person guilty of aggravated battery can be convicted of attempted murder although he has no specific intent to kill by the battery, is to suggest an untrammelled discretion of prosecutor, jury, and court to punish an accused for offensive conduct. To the contrary, the legislature has authorized prosecutions for particular crimes. In a government of law and of constitutionally and legislatively limited powers, neither prosecutor, jury, nor court are empowered to sustain a conviction for conduct not punishable by the crime for which the accused stands charged. 322 So.2d at 193-194.
That the defendant's incarceration will not be altered by adhering to Butler appears to be of no consequence insofar as our review is concerned. See: State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). The defendant is entitled to attack the invalid conviction even though it is concurrent with or consecutive to a valid sentence for which defendant will remain confined inasmuch as, in the event of retrial, it is of great advantage to the prosecution and defense alike to marshall their respective cases while the evidence is fresh and the witnesses are available. id. See also: State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1982). The trial court's error in instructing the jury requires the defendant's conviction for this crime be reversed.
ASSIGNMENT OF ERROR NO. 19
The defendant argues that the trial court erred in charging the twelve-person jury that: "Ten of you must agree upon a verdict". The defendant feels that a nonunanimous verdict offends due process under the Fourteenth Amendment, and impairs the defendant's right to a "fair trial by jury" as is guaranteed by the Sixth and Fourteenth Amendments.
Article I, Section 17 of the Louisiana Constitution states in pertinent part that:
"... A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict..."
See, also LSA-C.Cr.P. art. 782.[20]
The United States Supreme Court in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); and Johnson *637 v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), has upheld Louisiana's less than unanimous verdicts as provided in Louisiana Constitution art. I, § 17 and LSA-C.Cr.P. art. 772. Therefore, this assignment is without merit.
CONCLUSION
For the reasons assigned hereinabove, the defendant's aggravated rape conviction and sentence to life imprisonment without benefit of probation, parole or suspension of sentence is affirmed. His conviction for attempted second degree murder is reversed and the case is remanded for re-trial in accordance with law.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
*638
APPENDIX I
State of Louisiana |
}
Parish of Calcasieu |
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF LOUISIANA:
The Grand Jurors of the State of Louisiana, duly empaneled, sworn and charged to enquire within and for
the Parish of Calcasieu State of Louisiana, upon their oath do present
THAT KENNETH GUIN
at the Parish of Calcasieu on the 16th day of "APRIL" Amended Nov.12, 1980
in the year of our Lord, One Thousand Nine Hundred and Eighty-two
COUNT ONE:
KENNETH GUIN ATTEMPTED TO COMMIT SECOND DEGREE MURDER OF BARBARA JACOBS
IN VIOLATION OF LSA R.S. 14:27 and 14:30.1.
COUNT TWO:
KENNETH GUIN COMMITTED AGGRAVATED RAPE UPON BARBARA JACOBS IN VIOLATION
OF LSA R.S. 14:42.
contrary to the law of the State of Louisiana, in contempt of the authority of said State, and against the
peace and dignity of the same.
asst District Attorney Fourteenth Judicial District of Louisiana.
NOTES
[1] As the payroll clerk, Ms. Jacob's duties included processing new employees through their introductory paper work.
[2] Rape is defined in LSA-R.S. 14:41 as follows:
Rape is the act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person's lawful consent.
Emission is not necessary; and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.
For the purposes of this Chapter, a person shall not be considered to be a spouse if a judgment of separation from bed and board has been rendered.
[3] LSA-R.S. 14:42 provides:
Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.
Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
[4] LSA-R.S. 14:27 provides:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
D. Whoever attempts to commit any crime shall be punished as follows:
(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;
(2) If the offense so attempted is theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is theft or receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both;
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.
[5] LSA-R.S. 14:30.1 provides:
Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simply robbery, even though he has no intent to kill or to inflict great bodily harm.
Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
[6] Originally twenty-one (21) assignments of error were lodged with the Court. The defendant abandons ten assignments and argues the remaining eleven.
[7] A copy of the indictment is attached hereto for reference as Appendix No. I.
[8] LSA-C.Cr.P. art. 487 provides in its entirety:
A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.
B. Nothing contained herein shall be construed to prohibit the defendant from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney, and in such case, the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered.
[9] LSA-C.Cr.P. art. 468 provides in its entirety:
The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.
All allegations of the indictment and bill of particulars shall be considered as referring to the same date or time, unless otherwise stated.
[10] LSA-C.Cr.P. art. 401 sets forth the general qualifications of jurors as follows:
In order to qualify to serve as a juror, a person must:
(1) Be a citizen of the United States and of this state who has resided within the parish in which he is to serve as a juror for at least one year immediately preceding his jury service;
(2) Be at least eighteen years of age;
(3) Be able to read, write, and speak the English language;
(4) Not be under interdiction, or incapable of serving as a juror because of a mental or physical infirmity; and
(5) Not be under indictment for a felony, nor have been convicted of a felony for which he has not been pardoned.
[11] LSA-C.Cr.P. art. 831 provides in its entirety that:
A defendant charged with a felony shall be present:
(1) At arraignment;
(2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.
[12] LSA-C.Cr.P. art. 783 provides in its entirety that:
A. The court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. The panel shall be selected from the remaining members of the petit jury venire. The court, either on its own motion, or that of the state or a defendant, may order the attachment of an absent and unexcused petit jury venireman.
B. If jury service, whether criminal or civil, would result in undue hardship or extreme inconvenience, the district court may excuse a person from such service either prior to or after his selection for the general venire, jury pool, or jury wheel. The court may take such action on its own initiative or on recommendation of an official or employee designated by the court.
C. No person or group of persons shall be automatically excused.
D. In the event a person is excused because jury service would result in undue hardship or extreme inconvenience, the court may order that person's name be placed again in the general venire or in a central jury pool.
[*] Reversed on other grounds.
[13] The record, as transcribed, indicates on Page 192 that the victim did not respond to the district attorney's question but on Page 330, reiterating the same testimony, there is a response.
[14] LSA-C.Cr.P. art. 775 provides in its entirety that:
A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.
[15] LSA-C.Cr.P. art. 770 provides in its entirety that:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.
[16] LSA-C.Cr.P. art. 771 provides in its entirety that:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
[17] LSA-C.Cr.P. art. 806 virtually tracks the language of article 772 and provides:
The court shall not charge the jury concerning the facts of the case and shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.
[18] See LSA-R.S. 14:30.1, supra.
[19] See LSA-R.S. 14:27, supra.
[20] LSA-C.Cr.P. art. 782 is taken substantially from the constitutional source and tracks the language as follows:
A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.
B. Trial by jury may be knowingly and intelligently waived by the defendant except in capital cases. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1251838/ | 543 S.E.2d 195 (2001)
STATE of North Carolina
v.
David James MESSER.
No. COA00-228.
Court of Appeals of North Carolina.
March 20, 2001.
*196 Attorney General Michael F. Easley, by Assistant Attorney General Stewart L. Johnson, for the State.
Belser & Parke, P.A., by David G. Belser, Asheville, for defendant-appellant.
CAMPBELL, Judge.
On 10 February 1999, defendant entered a plea of guilty to the charge of felony possession of marijuana. Defendant also pleaded guilty to being an habitual felon. Defendant appeals the judgment and commitment entered pursuant to his guilty pleas. Defendant contends the trial court erred in its determination that it did not have discretion to deviate from the applicable structured sentencing ranges for a defendant convicted of a Class C felony with a prior record level IV. We hold that the trial court did not err.
Because the only assignment of error brought forward by defendant is directed at sentencing, we need not recite the circumstances surrounding defendant's arrest. The pertinent facts and procedural history are as follows: On 10 February 1999, defendant pleaded guilty as an habitual felon to the charge of felony possession of marijuana, and a sentencing hearing was held. Defendant stipulated to eleven prior record points, which placed him in prior record level IV. Following the presentation of evidence at the sentencing hearing, the trial court found the existence of two statutorily enumerated mitigating factors, as well as five additional factors in mitigation. The trial court determined that these mitigating factors outweighed the lack of factors in aggravation, and that a sentence in the mitigated range was justified. The trial court also found the existence of extraordinary mitigation, but determined it lacked the authority (which it indicated it would have exercised, if available) to use extraordinary mitigation to deviate from the applicable structured sentencing ranges for a defendant convicted of a Class C felony with a prior record level IV. The trial court imposed a minimum sentence of 80 months and a maximum sentence of 105 months, within the mitigated range for sentencing a Class C felon with a prior record level IV.
Defendant's sole assignment of error is that the trial court erred in determining it lacked the authority to use extraordinary mitigation to deviate from the applicable structured sentencing ranges for a defendant convicted of a Class C felony with a prior record level IV. We disagree.
The Structured Sentencing Act (Act), under which defendant was sentenced, states that "[t]he sentence shall contain a sentence disposition specified for the class of offense and prior record level, and its minimum term of imprisonment shall be within the range specified for the class of offense and prior record level, unless applicable statutes require or authorize another minimum sentence of imprisonment." N.C. Gen.Stat. § 15A-1340.13(b) (1999) (emphasis added). Further, N.C. Gen.Stat. § 15A-1340.13(e) states that "[d]eviations for aggravated or mitigated punishment are allowed only in the ranges of minimum and maximum sentences of imprisonment...." N.C. Gen.Stat. § 15A-1340.13(e) (1999)(emphasis added). This appeal requires interpretation of these two provisions of the Act.
The foregoing provisions make it clear that in determining the minimum term of imprisonment the trial court can only deviate from the range specified for the class of offense and prior record level where there is an applicable statute that authorizes such deviation. In the case sub judice, the defendant has failed to bring to the Court's attention any authority that would authorize the deviation defendant is seeking. In fact, there is no statute that authorizes such a deviation. Further, although the trial court is authorized to deviate from the presumptive sentence ranges upon a finding of mitigation, *197 such deviation must stay within the ranges of punishment prescribed by the Act.
Defendant contends that a trial court's finding of extraordinary mitigation gives it discretion under N.C. Gen.Stat. § 15A-1340.13(g) to deviate from the applicable sentencing ranges for a defendant sentenced as a Class C felon with a prior record level IV. Defendant argues that N.C. Gen.Stat. § 15A-1340.13(g) does not expressly state that a trial judge does not have discretion to impose a sentence that deviates from the minimum range upon a finding of extraordinary mitigation, and, therefore, the statute must be construed without such a limitation. We find defendant's argument unpersuasive for two reasons.
First, defendant is precluded from benefitting from extraordinary mitigation by operation of N.C. Gen.Stat. § 15A-1340.13(h)(3), which prohibits a trial court from using extraordinary mitigation when a defendant has five or more prior record level points. N.C. Gen.Stat. § 15A-1340.13(h)(1999). In the case sub judice, defendant stipulated to eleven prior record level points.
Second, there is nothing in the language of N.C. Gen.Stat. § 15A-1340.13(g) that would permit a trial court to impose a shorter minimum term of imprisonment than that which is required for the class of offense and prior record level at issue based on a finding of extraordinary mitigation. N.C. Gen.Stat. § 15A-1340.13(g) allows a trial court to use extraordinary mitigation as a means of imposing an intermediate punishment for a class of offense and prior record level which requires imposition of an active punishment, in situations where an active punishment would be manifestly unjust. N.C.Gen.Stat. § 15A-1340.13(g)(1999). Extraordinary mitigation is only intended as a tool for dispositional deviation, and not as a tool to reduce the minimum term of an active sentence. Therefore, defendant's reliance on N.C. Gen.Stat. § 15A-1340.13(g) is misplaced.
For the foregoing reasons, we hold that a trial court lacks the authority to use a finding of extraordinary mitigation to deviate from the applicable structured sentencing ranges for a defendant convicted of a Class C felony with a prior record level IV. Accordingly, we conclude that there is no error in the trial court's judgment and commitment.
Affirmed.
WALKER and HUNTER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1251839/ | 543 S.E.2d 805 (2000)
247 Ga. App. 685
HUTCHERSON et al.
v.
OBSTETRIC & GYNECOLOGIC ASSOCIATES OF COLUMBUS, P.C. et al.
No. A00A2329.
Court of Appeals of Georgia.
December 28, 2000.
Reconsideration Denied January 25, 2001.
Neal H. Howard, Joann Brown-Williams, William D. James, Atlanta, for appellants.
Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., Columbus, for appellees.
BARNES, Judge.
Acting individually and as the administrator of the estate of Pamela Hutcherson, Jeffery Hutcherson sued Obstetric & Gynecologic Associates of Columbus, P.C., and Charles Stamey, M.D., for medical malpractice. Hutcherson filed suit on February 5, 1999, for damages resulting from the death of his wife Pamela on February 7, 1994. Pamela Hutcherson, who was 37 weeks pregnant, *806 died of a heart attack, and her unborn child died with her. The defendants moved for summary judgment, arguing that Hutcherson's action was barred by the two-year statute of limitation and the five-year statute of repose. The trial court granted the motion, and Hutcherson appeals. For the reasons that follow, we affirm the trial court's judgment.
1. On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga.App. 802, 803, 500 S.E.2d 591 (1998); Lane v. Spragg, 224 Ga. App. 606, 481 S.E.2d 592 (1997).
2. Viewed in this light, the record shows that 31-year-old Pamela Hutcherson became pregnant in the summer of 1993. Dr. Stamey was her obstetrician, as he had been for her first child, a daughter born in 1989, and he or someone in his practice saw Pamela regularly throughout her pregnancy. On February 7, 1994, Pamela suffered a heart attack at her house, and despite efforts at cardiopulmonary resuscitation, she was pronounced dead upon her arrival at the hospital. Her eight-and-a-half-pound unborn child died with her.
Hutcherson's deposition is not included in the record before us, and we uncovered no request by Hutcherson to require Dr. Stamey to file Hutcherson's original deposition in the trial court.[1] However, according to Hutcherson's verified complaint, Dr. Stamey told Hutcherson that Pamela died of a heart attack that was caused by a heart murmur. The complaint does not indicate when this statement was made. Dr. Stamey testified in deposition that, while he remembered talking to Hutcherson about Pamela's death, he did not recall specifically what he said. Hutcherson further alleges in his complaint that an autopsy revealed that his wife's death was caused by "peripartum cardiomyopathy" rather than a heart murmur, a conclusion confirmed by the medical examiner's affidavit. This discrepancy forms the nucleus of Hutcherson's fraud argument.
Hutcherson argues that, because Dr. Stamey incorrectly described the etiology of Pamela's heart attack as being caused by a heart murmur instead of by "peripartum cardiomyopathy," Hutcherson was misled into failing to request a copy of the autopsy report, which was completed April 15, 1994.[2] Because of this incorrect information, he asserts, "he was deterred from further investigating the medical circumstances surrounding his wife's death."
Hutcherson submitted the affidavit of a medical expert who noted that Pamela's medical records stated that she complained in December 1993 of shortness of breath, edema, and an irregular heartbeat. The expert opined that Dr. Stamey's apparent failure to perform any diagnostic studies or tests at that time breached applicable standards of care. Hutcherson also submitted the affidavit of the medical examiner who performed the autopsy, who stated that
[a] heart murmur and cardiomyopathy both may effect [sic] how the heart functions, but it is not appropriate to state that the cause of death in this case is due to a heart murmur when in actuality the deceased succumbed to peripartum cardiomyopathy. Peripartum cardiomyopathy simply means that the heart dysfunction for unknown reasons is related to current or recent pregnancy.
In the letter to Pamela's parents, the medical examiner explained that peripartum cardiomyopathy "is a very rare disorder that affects pregnant woman [sic] either a few weeks before or few weeks after they deliver a child.... Unfortunately, it often produces little in the way of symptoms."
While Hutcherson amended his complaint to add allegations of evidence spoliation and breach of fiduciary, private and legal duties *807 and again amended it to allege that Dr. Stamey intended to mislead him, we need not address these allegations initially because they do not relate to the allegation of fraud that could estop the defendant from asserting the defense of the statute of repose. Similarly, his assertion that Dr. Stamey failed to forward records to the Georgia Bureau of Investigation showing he prescribed codeine to Pamela, a medication to which she was allegedly allergic, three days before she died, is also not relevant to our initial inquiry, because Hutcherson has not argued that this failure prevented him from further investigating the circumstances surrounding his wife's death.
The allegation we must first focus on is whether Dr. Stamey's statement attributing Pamela's heart attack to a heart murmur rather than peripartum cardiomyopathy is a sufficient allegation of fraud to allow the plaintiff to withstand summary judgment on the issue of the statutes of limitation and repose. In considering this allegation, we will assume for the sake of argument only that Hutcherson and Dr. Stamey had a confidential relationship.
Under the statute of limitation, a medical malpractice claim must be filed within two years after the date on which a death arising from a negligent act or omission occurred. OCGA § 9-3-71(a). Under OCGA § 9-3-96, if a defendant commits fraud that deters a plaintiff from bringing an action, the period of limitation runs only from the time the plaintiff discovers the fraud. The Code further provides that "in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred." OCGA § 9-3-71(b). Here, Hutcherson alleged that Dr. Stamey's failure to perform diagnostic tests in December 1993 violated applicable standards of care, and suit was not filed until more than five years later, on February 5, 1999. Thus the action was not only filed after the two-year statute of limitation expired, but also outside the time limits of the statute of repose.
However, while fraud does not toll the statute of repose,
if the evidence of defendant's fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the jury to exist, then the defendant, under the doctrine of equitable estoppel, is estopped from raising the defense of the statute of ultimate repose.
Esener v. Kinsey, 240 Ga.App. 21, 23, 522 S.E.2d 522 (1999), cert. denied, 240 Ga.App. 905 (2000).
Hutcherson's claim that Dr. Stamey is estopped from asserting the statute of repose defense is premised on his argument that he was deterred from further investigating his wife's cause of death because the doctor incorrectly ascribed Pamela's heart attack to a heart murmur. However, nothing in the record shows that Dr. Stamey knew the medical examiner's diagnosis of peripartum cardiomyopathy when Dr. Stamey allegedly told Hutcherson that Pamela's heart attack was caused by a heart murmur.
We have previously reversed a trial court's denial of a motion for summary judgment in a medical malpractice case in which the plaintiff claimed
she was deterred from learning the truth of her condition by defendant's knowing failure to inform her that she had undergone an incomplete hysterectomy. However, she has failed to show any inference that defendant knew the cervix or any part of it remained. At best, plaintiff has shown defendant failed to detect the remaining tissue. While this failure may be evidence of negligence, it is not evidence of fraud [that] would toll the statute of limitation. A patient must present evidence of a known failure to reveal negligence in order to show fraud.... In the case at bar, there is absolutely nothing from which we can make any inference that the defendant doctor had any knowledge of improper conduct on his part or that he tried to cover up such conduct in any way....
(Citations and punctuation omitted.) Hendrix v. Schrecengost, 183 Ga.App. 201, 202(1), 358 S.E.2d 486 (1987).
Similarly, we affirmed the grant of summary judgment to a defendant doctor when the plaintiff's *808 only allegation of fraud in appellant's amended complaint is that his condition was misdiagnosed on September 4, 1979, and that the physician continued to treat him until March 18, 1980, when he ordered X-rays. Such an allegation is insufficient to raise an issue of fraud, as misdiagnosis only raises an issue of negligence under OCGA § 9-3-70(a)(2).
Johnson v. Gamwell, 165 Ga.App. 425, 426-427, 301 S.E.2d 492 (1983).
Hutcherson knew his wife died of a heart attack, and we conclude that a doctor's attribution of the cause to a heart murmur rather than cardiomyopathy does not constitute sufficient evidence of fraud to create a jury question on whether the defendant is equitably estopped from raising the defense of the statute of repose. The trial court did not err in granting summary judgment to the defendants.
3. The remaining enumerations of error are rendered moot in light of our holding in Division 2.
Judgment affirmed.
BLACKBURN, P.J., and ELDRIDGE, J., concur.
NOTES
[1] Because the record does not indicate that the trial court considered Hutcherson's deposition in granting summary judgment to Dr. Stamey, our inquiry does not end here. See Tahamtan v. Sawnee Elec. Membership Corporation, 228 Ga. App. 485, 491 S.E.2d 918 (1997).
[2] However, the record contains a letter from the medical examiner to Pamela Hutcherson's parents dated April 18, 1994, only three days after the autopsy was completed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592959/ | 453 So.2d 1266 (1984)
STATE of Louisiana, Plaintiff-Appellee,
v.
Mark LATIOLAIS, Defendant-Appellant.
No. CR83-687.
Court of Appeal of Louisiana, Third Circuit.
July 25, 1984.
Writ Denied October 12, 1984.
*1267 Lester Gauthier, Lafayette, for defendant-appellant.
Charles Brandt, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
Before GUIDRY, STOKER and CUTRER, JJ.
STOKER, Judge.
Defendant, Mark Latiolais, appeals from his conviction for attempted second degree murder and sentence of fifty years in the custody of the Department of Corrections. We affirm.
FACTS
On the evening of January 6, 1982, Emile Bernard offered a ride to two young men walking along the road. The two men, defendant and Purvis "Joey" Meaux, accepted the ride and entered the cab of Mr. Bernard's truck. Defendant sat next to Mr. Bernard and Mr. Meaux sat next to the passenger door. There is some dispute over the destination of defendant and Mr. Meaux; however, it appears that Mr. Bernard intended to take them to Broussard, which is his home, and that they would make their way from there.
According to Mr. Bernard, when he stopped to drop the men off, defendant began stabbing him for no apparent reason with a pointed object resembling a screwdriver. Mr. Bernard was stabbed in the chest, under the arm, in the neck and in the left temple. He was then dragged out of the truck and beaten. Mr. Bernard testified that while he was on the ground defendant tried to stick the pointed object into the back of his head, and he felt as though he were being searched for a wallet. Defendant and Mr. Meaux fled the scene in Mr. Bernard's truck, leaving him bleeding by the side of the road. Mr. Bernard was permanently blinded by the stab wound to his temple.
Defendant does not deny stabbing Mr. Bernard; however, he claims that he was provoked by Mr. Bernard's sexual advances. According to defendant, Mr. Bernard indicated that he was homosexual and that he desired to have oral sex with defendant. Defendant claims that after he rebuked the advances, Mr. Bernard touched his knee in a "meaningful" way. Defendant testified that he "kind of went crazy ... kind of blanked", grabbed a screwdriver off the dashboard of the truck, and began hitting Mr. Bernard with it.
*1268 On appeal, defendant makes the following assignments of error:
(1) The district attorney improperly went beyond the scope of the opening statement and addressed anticipated defenses.
(2) There is not sufficient evidence to support the jury verdict of attempted second degree murder.
(3) The maximum sentence of fifty years is excessive.
(4) The conduct of the victim was sufficient provocation to preclude a finding of guilty of attempted second degree murder.
(5) The jury was improperly instructed as to the specific intent required for attempted second degree murder.
(6) Because there was no objection to the jury instructions complained of, defendant clearly received ineffective assistance of counsel at trial.
ASSIGNMENT OF ERROR NO. 1.
Defendant claims that the district attorney improperly addressed anticipated defenses in his opening statement. The portion of the opening statement objected to is as follows:
"You're going to learn that there is, in addition to the side of the story that I told you, there's another side to the story. And that is that Emile Bernard did, in fact, ... This is the other side of the coin. Emile Bernard did, in fact, pick up Joey Meaux and the defendant."
At this point, counsel for the defendant objected, and the jury was removed. Defendant first moved for a mistrial arguing that the State had gone outside the permissible scope of its opening statement. Defendant subsequently withdrew his motion for mistrial and requested an admonition to the jury as to the scope of opening statements. The judge denied the motion for an admonition on the basis that the district attorney had not yet made any improper statements in his opening statement. We agree. Even if the language quoted above was intended to introduce the anticipated defense in this case, defendant successfully objected preventing any error.
ASSIGNMENT OF ERROR NO. 2.
By this assignment defendant argues that there is not sufficient evidence to support the jury verdict of attempted second degree murder. Specifically, defendant argues that there is no evidence indicating that he had a specific intent to kill Mr. Bernard. The State first argues that the sufficiency of evidence is not reviewable on appeal because it was not addressed to the trial court in a motion for a new trial. This position is not well taken, as the Louisiana Supreme Court has held that sufficiency of evidence may be considered when it is simply raised by formal assignment of error. State v. Edwards, 400 So.2d 1370 (La. 1981). Defendant in this case has properly raised the issue by assignment of error.
A specific intent to kill is an essential element of the crime of attempted second degree murder. A specific intent to inflict great bodily harm is sufficient to find a defendant guilty of murder if the victim dies, but is not sufficient to find him guilty of the attempt if the victim survives. In such a case, the defendant's intent to inflict great bodily harm would be sufficient only to find him guilty of a battery. State v. Butler, 322 So.2d 189 (La.1975). Specific intent is a state of mind which need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Holmes, 388 So.2d 722 (La. 1980). When a conviction is based on circumstantial evidence, every reasonable hypothesis of innocence must be excluded. LSA-R.S. 15:438. In reviewing a conviction under the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the defendant guilty beyond a reasonable doubt. Thus, in reviewing the element of specific intent which is based upon circumstantial evidence we must determine that, viewing the evidence in the *1269 light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. State v. Austin, 399 So.2d 158 (La.1981).
The weapon used by the defendant to stab Mr. Bernard was not recovered; however, defendant admits that he used a screwdriver which, according to the victim's testimony, had a blade or shaft measuring approximately two and one-half inches in length. Defendant claims to have grabbed the screwdriver from the dashboard of Mr. Bernard's truck, but Mr. Bernard denies that there was a screwdriver or any other object on the dashboard of the truck. Mr. Meaux also testified that he did not remember seeing anything on the dashboard of the truck, and he is not certain where the defendant obtained the screwdriver used in the stabbing.
The defendant takes the position that had he intended to kill Mr. Bernard he would have used a more formidable weapon; therefore, he must have intended only to inflict great bodily harm. We do not find this argument persuasive. Mr. Bernard was stabbed repeatedly in the head and chest area and, according to his testimony, he was immediately blinded by the blow to the temple. After Mr. Bernard was dragged from the truck, he testified that he believed he was going to be killed and he also believed that he was left for dead by the side of the road. In addition to his blindness, Mr. Bernard suffered a broken nose, a punctured sinus, and a fractured skull.
Defendant points out on appeal that he could have made certain Mr. Bernard was dead since Mr. Bernard was completely blinded by the initial attack. Defendant also points out that there is no evidence of any premeditation to attack or commit theft or any other crime against Mr. Bernard. We do not find that any of these arguments present a reasonable hypothesis of innocence. No premeditation is required to prove specific intent. The stab wounds inflicted on Mr. Bernard were all to sensitive areas of the body, and he was left bleeding by the side of the road. We find that Mr. Bernard's belief that he was left for dead is the only reasonable construction to put on the events.
ASSIGNMENT OF ERROR NO. 3.
Defendant argues that his maximum sentence of fifty years is excessive under the facts and circumstances of this case. We disagree. In his reasons for sentence the trial judge fully reviewed the factors to be considered in sentencing set out in LSA-C.Cr.P. art. 894.1.
The trial judge noted that the defendant has no prior felony convictions, and his juvenile record of delinquency does not include violent acts. Defendant's main argument in mitigation of his acts involve the alleged provocation by Mr. Bernard. In regard to that claim, the trial judge made the following specific findings:
"In examining the report, a couple of salient points, in addition to what I've already said, should be noted. In Section B of the report dealing with offender's statements. Reading now therefrom: `Regarding the instant offense, Latiolais stated that he feels he is not guilty as charged since the victim was asking for trouble by asking what he asked for.'
"Even if we were to assume thatand I do so arguendo, without making such a finding,that the victim had solicited homosexual relations with the defendant, the defendant's response of stabbing repeatedly is completely out of all proportion and indicates to me that the antisocial and violently dangerous propensities of this defendant."
The trial judge noted further that this crime was committed in a particularly heinous manner, and statements made by the defendant's grandmother to the officer conducting the presentence investigation indicate that he has violent tendencies. Although a maximum sentence of fifty years was imposed on this defendant, he will be eligible for parole consideration under the sentencing provisions for attempt, LSA-R.S. *1270 14:27(D)(1). See State v. Welch, 368 So.2d 965 (La.1979), on application for rehearing. We adopt the position of the Supreme Court in sentence review in State v. Douglas, 389 So.2d 1263 (La.1980), in which a maximum sentence for armed robbery was imposed. In that case the court stated:
"This court does not lightly consider the matter of a 99-year sentence imposed without hope of release on parole. There may be sound arguments against the frequent use of such sentences, but these arguments address themselves to the reasoned discretion of the sentencing judge. The function of the reviewing court is not merely to substitute this court's judgment for that of the trial court, but to determine whether the court below manifestly abused its discretion. In this case we cannot find such abuse."
See also State v. Jack, 448 So.2d 725 (La.App. 5th Cir.1984).
ASSIGNMENT OF ERROR NO. 4.
Defendant asserts that the conduct of the victim constituted "provocation sufficient to deprive an average person of his self control and cool reflection." Such provocation, if proven, would reduce the charge from attempted second degree murder to attempted manslaughter. On appeal defendant asserts that he suffers from "homophobia," an excessive hostility toward and fear of homosexuals. No evidence was introduced at trial indicating that defendant suffers from such a malady. In his voluntary statement to the police, the defendant responded that he began to hit Mr. Bernard because "I don't like Fags." At trial the defendant testified that Mr. Bernard touched his leg in a manner which was not rough but just "meaningful," indicating that Mr. Bernard was determined to have sexual relations with him. Even assuming that the allegations of advances by Mr. Bernard are true, these advances are not provocation sufficient to justify the vicious attack by defendant.
ASSIGNMENTS OF ERROR NOS. 5 AND 6.
In these assignments defendant claims that the jury was improperly instructed as to the specific intent required for a conviction of attempted second degree murder. Because there was no objection at trial to the jury instructions, defendant now asserts that he was denied effective assistance of counsel. Thus, we must determine whether any alleged error in the jury instructions is reviewable on this appeal due to the absence of a contemporaneous objection.
The specific instruction complained of is as follows:
"Thus, in order to convict the defendant of attempted second degree murder, you must find:
"(1) that the defendant had a specific intent to commit the crime of attempted second degree murder;
"(2) that the defendant did or omitted an act for the purpose of and tending directly toward the commission of the crime of attempted second degree murder upon Emile Bernard."
As we pointed out in Assignment of Error No. 2, an essential element of the crime of attempted second degree murder is a specific intent to kill, and the jury should have been so instructed. State v. Butler, supra. The instruction quoted above, when considered with the definition of second degree murder which the jury was given, leaves the impression that intent to inflict great bodily harm will suffice to support a finding of the attempt. This is erroneous as set forth in the Butler case. The general rule is that absent a contemporaneous objection, a defendant may not complain of the charge to the jury on appeal. State v. Belgard, 410 So.2d 720 (La.1982). An exception to the general rule was set out in State v. Williamson, 389 So.2d 1328 (La.1980). In Williamson the defendant was on trial for the crime of attempted first degree murder which was committed on July 17, 1979. The jury was inadvertently instructed under the murder statutes which were not effective after *1271 June 29, 1979. Even though there was no objection to the erroneous jury instruction, the Supreme Court determined that it was within its province to review a complaint of constitutional violations which clearly appeared on the record. On that basis, the conviction in Williamson was reversed and the case remanded for a new trial.
Williamson was distinguished in an opinion by Justice Calogero concurring in the denial of a rehearing in State v. Belgard, supra, a case which is similar to the one before us. In Belgard the defendant was charged with attempted second degree murder in connection with a shooting incident. The instruction complained of by the defendant in Belgard was as follows:
"Now, Second Degree Murderthe crimeis the killing of a human being...
(1) When the offender has a specific intent to kill or to create great bodily harm...
Now, the charge in this case is attempted second degree murder, so now let me define attempt. Attempt is defined as follows: Any person who, having the specific intent to commit a crime, does or omits an act for the purpose of, and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended, and it shall be immaterial whether, under the circumstances, he would actually have accomplished his purpose..."
In his concurrence, Justice Calogero pointed out that Williamson involved a recent legislative change in the definitions of first and second degree murder and the jury was mistakenly charged not only as to the definitions, but as to the responsive verdicts under those former definitions. In comparing Belgard to Williamson, Justice Calogero made the following statements:
"This case is distinguishable from Williamson. There was no recent legislative change in the legal definitions of the crime charged of which the trial judge and trial attorney were oblivious. Nor is it apparent from the record that the jury mistakenly applied the law, despite the fact that they may have been given an erroneous impression from the wording of the judge's charge. Application of this contemporaneous objection rule is designed for just such a case as this. Defendant cannot neglect to afford the trial judge an opportunity to correct the charge, take his chance on a jury acquittal, then complain after conviction of the error."
It is our opinion that the comments of Justice Calogero in Belgard are applicable to this case. It is not apparent from the record that the jury mistakenly applied the law, even if they were given an erroneous impression from the wording of the charge. As pointed out in the discussion of Assignment of Error No. 4, there was sufficient evidence to find that the defendant had a specific intent to kill Mr. Bernard.
The question of improper instruction to the jury as to the crime of attempted second degree murder was recently considered in State v. Guin, 444 So.2d 625 (La.App. 3rd Cir.1983). The instruction was improper and violated the rule of State v. Butler, supra, because the court refused to eliminate from the definition of second degree murder the words "or to inflict great bodily harm." As in Butler, defense counsel objected to the charge as being improper; but, nevertheless, the improper instruction was maintained. Accordingly, in State v. Guin, the court reversed the attempted second degree murder conviction and remanded the case for a new trial. The Guin case is therefore distinguishable from this case before us and from State v. Belgard, supra, in which contemporaneous objections to the erroneous instructions were not made.
For the same reasons given above, we do not find that the issue of ineffective assistance of counsel is proper for review at this time. It is well established that such a claim is more properly raised by writ of habeas corpus at which time there can be an evidentiary hearing on the matter. We do not find that the record before us supports defendant's claim of ineffective assistance of counsel based solely on the error in the jury instruction.
*1272 CONCLUSION
For the above reasons, the conviction and sentence of the defendant are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2311386/ | 276 Md. 178 (1975)
345 A.2d 436
STATE OF MARYLAND
v.
GRADY
[No. 28, September Term, 1975.]
Court of Appeals of Maryland.
Decided October 7, 1975.
*179 The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.
George A. Eichhorn, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellant.
James E. Kenkel and Joseph A. DePaul, with whom were DePaul Willoner & Kenkel, P.A. on the brief, for appellee.
DIGGES, J., delivered the opinion of the Court.
More than twenty years have elapsed since this Court last examined the use of an alibi as a defense in a criminal cause and the nature of the burden of proof when an alibi is relied upon. In light of the apparent confusion which surrounds the use of this defense, particularly with respect to instructing the jury, we now address this area once again.
John Joseph Grady, the respondent, was convicted in the Circuit Court for Prince George's County by a jury (Robert B. Mathias, J., presiding) of committing unnatural and perverted sexual practices as well as assault and battery upon three young children. After Judge Mathias suspended the prison sentence he imposed and placed the respondent on five years supervised probation, Grady appealed to the Court of Special Appeals. That court, while also finding two other grounds for reversal, concluded that an improper jury instruction pertaining to an alibi was sufficient to dispose of the appeal and accordingly confined its discussion to that issue.[1]Grady v. State, 24 Md. App. 85, 329 A.2d 726 (1974). This Court granted the State's petition for a writ of certiorari, limited to the question of whether the Court of *180 Special Appeals was correct in holding that the trial court's alibi instruction was erroneous. We will affirm.
The record discloses that two families, the Gradys and the Coads, were next-door neighbors for approximately three years prior to respondent's indictment, during which time a close friendship developed between them. Members of the Coad family, particularly Mrs. Coad and her seven-year-old daughter Kelly, often visited the Grady home. Frequently on these occasions Kelly was accompanied by her playmates, Meghan McGarvey, age 9, and Maureen McGarvey, age 6. On June 19, 1973, the father of Maureen and Meghan, claiming to have knowledge of improper conduct on the part of Mr. Grady involving the three young girls, made the complaint that ultimately led to the indictment filed in this case. Although the indictment stated that the offenses occurred on or about June 19, 1973, substantial uncertainty exists as to when, how often, where, and with whom the alleged unnatural and perverted sex acts were performed. At the trial none of the girls indicated precisely when the purported acts occurred and, moreover, the State's Attorney conceded that they could not do so. The respondent categorically denied any wrongdoing and, in an attempt to account for his activities and whereabouts during the week preceding June 20, testified that he was at work during the day and, as usual, attended classes at Georgetown University three nights that week. In addition, seeking to fill the remaining time gaps, both Grady and his wife testified with regard to other specific activities engaged in by the respondent on June 18 and 19.
At trial, Judge Mathias instructed the jury as to the alibi defense in these words:
"Now, there is evidence in this case, or been offered in this case, or introduced, the defendant was not present at the time and the place where the offenses allegedly were committed. This may be referred to as a defense of alibi. The Court tells you that a defense of alibi is a legitimate, legal and proper defense. The defendant may not be *181 convicted of the offense with which he is charged unless the government proves beyond a reasonable doubt that the defendant was present at the time when, and at the place where, the offenses were committed.
"If, after a full and fair consideration of all the facts and circumstances in evidence, you find that the government has failed to prove beyond a reasonable doubt that the defendant was present at the time when, and the place where, the offense charged was allegedly committed, you must find the defendant not guilty.
"With reference to alibi, a defendant may be entitled to acquittal if you believe the alibi testimony as his not being present at a time and place of the alleged offense, by taking into consideration this testimony with all the other evidence raising a reasonable doubt of guilt, but in order to prove an alibi conclusively, the testimony must cover the whole time in which the crime by any possibility might have been committed, and it should be subjected to rigid scrutiny." (Emphasis added.)
The Court of Special Appeals concluded that the trial judge committed reversible error by including the segment italicized above in his instruction because in doing so he placed a burden of proof upon the defendant-respondent not permitted by law.[2]Grady v. State, supra at 91-93.
That it is incumbent upon the State to prove a defendant's guilt, and to do so beyond a reasonable doubt, is well-established by the many decisions of this Court. See, e.g., Wilson v. State, 261 Md. 551, 563, 276 A.2d 214 (1971); Malcolm, Jr. v. State, 232 Md. 222, 225, 192 A.2d 281 (1963); Johnson v. State, 227 Md. 159, 163, 175 A.2d 580 (1961). *182 While this principle has long been in effect in Maryland, the United States Supreme Court has only recently held that it is mandated by the Federal Constitution. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see Speiser v. Randall, 357 U.S. 513, 523-24, 526, 78 S.Ct. 1332, 1341, 1342, 2 L.Ed.2d 1460 (1958); Tot v. United States, 319 U.S. 463, 469, 63 S.Ct. 1241, 1246, 87 L.Ed. 1519 (1943). In Winship, the Court concluded that the due process clause of the fourteenth amendment protects an accused in a state criminal cause against conviction except upon proof beyond a reasonable doubt of every element of the crime with which he is charged. 397 U.S. at 361-64, 90 S.Ct. at 1071-73. Within the last few months the Supreme Court, in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), elaborated upon the impact of Winship with regard to the burden of proof in felonious homicide cases where the defendant claims he acted in the heat of passion. There a challenge was made to a Maine statute which obliged a defendant in such a case to prove that he acted in the heat of passion in order to reduce the offense from murder to manslaughter. Extending the rationale of Winship, the Supreme Court interpreted the due process clause of the fourteenth amendment as requiring the prosecution to prove beyond a reasonable doubt the absence of heat of passion when that issue was properly presented in a homicide case. 421 U.S. at 704, 95 S.Ct. at 1892. We conclude that the teachings of these Supreme Court cases apply to the issue of who has the burden of proof and what that burden is when an accused relies on an alibi as a defense. In sum, under the Federal Constitution, as well as the law of Maryland, the burden is on the State to prove all elements of the alleged crime and to do so beyond a reasonable doubt; hence, the defendant does not have to establish his alibi, not even by a minimal standard of proof. "Evidence of alibi should come into a case like any other evidence and must be submitted to the jury for consideration of whether the evidence as a whole on the issue of presence proves the defendant's guilt beyond a reasonable doubt." Smith v. Smith, 454 F.2d 572, 578 (5th Cir.1971), cert. denied, 409 U.S. 885 (1972).
Although it seems that some confusion has arisen in a few *183 of the trial courts of this State as to the burden of proof in criminal cases in which evidence of an alibi is introduced, apparently because of certain language in Floyd v. State, 205 Md. 573, 109 A.2d 729 (1954), that case is not contrary to the views we express here. In Floyd, Judge Delaplaine for this Court set forth the following proposition:
"An alibi of an accused, proceeding as it does upon the idea that he was elsewhere at the time of the commission of the crime, does, of course, if thoroughly established, preclude the possibility of guilt. But all the evidence in a criminal case is to be considered together, and the jury are not to weigh merely the evidence relating to the alibi and determine from that alone whether they have a reasonable doubt of guilt. To warrant a conviction in a criminal case the charge must be proved beyond a reasonable doubt. Wood v. State, 192 Md. 643, 649, 65 A.2d 316 [(1949)]. If the jury, considering all the evidence, inculpatory and exculpatory, entertain a reasonable doubt of the defendant's participation in the crime, they should acquit him. Thus a defendant is entitled to acquittal if the alibi testimony, taken into consideration with all the other evidence in the case, raises a reasonable doubt of guilt. But in order to prove an alibi conclusively, the testimony must cover the whole time in which the crime by any possibility might have been committed, and it should be subjected to rigid scrutiny." 205 Md. at 581 (emphasis added). See Shipley v. State, 220 Md. 463, 468, 154 A.2d 708 (1959); Basoff v. State, 208 Md. 643, 655, 119 A.2d 917 (1956).
The source of the confusion appears to be the italicized portion of the above quoted paragraph from Floyd. Some trial courts and members of the bar seemingly have construed that segment to mean that the defendant had the burden of establishing his alibi, either by a preponderance of the evidence or conclusively. This, however, is an erroneous *184 interpretation since that part of Floyd merely refers to the fact that to be complete an alibi must cover the entire period of time in which the offense allegedly occurred.
Though this Court has not had an opportunity to examine this issue since Floyd, recently the Court of Special Appeals in a trilogy of cases, Daniels v. State, 24 Md. App. 1, 5-7, 329 A.2d 712 (1974); Jackson v. State, 22 Md. App. 257, 260-64, 322 A.2d 574 (1974); Robinson v. State, 20 Md. App. 450, 457-64, 316 A.2d 268, cert. denied, 272 Md. 747 (1974), read Floyd correctly while discussing the burden of proof in criminal causes in which alibi evidence was introduced. In each of those cases, the trial court had instructed the jury that the defendant has the burden of proving his alibi and that he must do so by a preponderance of the evidence. As Judge Gilbert pointed out for the court in Jackson, such an instruction apparently emanates from the popular but erroneous conception that reliance on an alibi is an affirmative defense carrying with it a burden of persuasion. 22 Md. App. at 263. We accept as a succinct and accurate expression of the law of this State the following words of Judge Moylan, written for the Court of Special Appeals in Robinson:
"We think the sound view to be that an alibi is not an affirmative defense, placing any burden upon a defendant beyond the self-evident one of attempting to erode the State's proof to a point where it no longer convinces the fact finder beyond a reasonable doubt. Proof of an alibi, like any other defense testimony, is simply a means of controverting the State's effort to establish criminal agency." 20 Md. App. at 459.
Our view that it is incorrect to conceptualize an alibi as an affirmative defense with the burden of proving it resting on the accused is in accord with the decisions of the overwhelming majority of jurisdictions which have ruled on the issue.[3]See, e.g., Smith v. Smith, supra; Stump v. *185 Bennett, 398 F.2d 111, 115-16 (8th Cir.) (en banc), cert. denied, 393 U.S. 1001 (1968); People v. Pearson, 19 Ill.2d 609, 169 N.E.2d 252, 255 (1960); State v. Jewell, 285 A.2d 847, 849-50 (Me. 1972); People v. Elmore, 277 N.Y. 397, 14 N.E.2d 451, 454-55 (1938); 1 Wharton's Criminal Evidence § 23 (13th ed. 1972); 29 Am.Jur.2d Evidence § 157 (1967); Annot., 124 A.L.R. 471 (1940).
Turning to the jury instructions in this case, we make the threshold observation that they must be viewed as a whole and that portions should not be read out of their proper context. State v. Foster, 263 Md. 388, 397, 283 A.2d 411 (1971), cert. denied, 406 U.S. 908 (1972); cf. Kruszewski v. Holz, 265 Md. 434, 443, 290 A.2d 534 (1972). Reading this instruction in that light, we conclude that it was improper to explain alibi testimony as did the trial judge since, at the very least, one rational interpretation of the words used would place an impermissible burden of proof upon the respondent. The Achilles' heel of the instruction is that it could be understood as meaning that, while the State must prove its case against the accused beyond a reasonable doubt, the defendant has the responsibility of establishing his alibi, and apparently must even do so conclusively. Though, from the trial judge's words, the jury may have properly construed the respondent's obligation, we must assume that the improper inference was drawn because the latter portion of the instruction, quoted earlier in this opinion, is misleading, ambiguous and confusing. See Baker v. Commissioner, 228 Md. 454, 461, 180 A.2d 482 (1962); Midgett v. State, 216 Md. 26, 41, 139 A.2d 209 (1958); Wintrobe v. Hart, 178 Md. 289, 296, 13 A.2d 365 (1940); Haney v. Marshall, 9 Md. 194, 215-16 (1856). Since the *186 defendant-respondent, as a matter of law, assumed no burden of persuasion with respect to his alibi evidence, the inference to the contrary in the instruction constitutes reversible error.
Finally, since the language which was misleading in this case was taken almost verbatim from our opinion in Floyd v. State, 205 Md. at 581, we comment upon the use of excerpts from judicial opinions when instructing a jury. Again we suggest that it is not always appropriate to quote from appellate decisions in jury instructions since the language employed in a particular opinion may not adequately inform jurors of their responsibility. Flohr v. Coleman, 245 Md. 254, 262, 225 A.2d 868 (1967); Garfinkle v. Birnios, 232 Md. 402, 404, 194 A.2d 91 (1963); Neas. v. Bohlen, 174 Md. 696, 199 A. 852 (1938). See generally 75 Am.Jur.2d Trial § 611 (1974).
Judgment of the Court of Special Appeals affirmed.
Costs to be paid by Prince George's County.
NOTES
[1] In addition to finding reversible error in the alibi instruction, the court agreed with, but did not discuss, respondent's contention that a hearsay statement by one of the prosecution's witnesses was improperly received in evidence and that he was denied due process because of ambiguity surrounding the time of the alleged criminal acts. Grady v. State, 24 Md. App. 85, 90 n. 2, 329 A.2d 726 (1974).
[2] Although Grady did not object to the jury instruction, the Court of Special Appeals took cognizance of the error pursuant to the plain error provision of Maryland Rule 756 g. Grady v. State, supra at 93. The State has raised no objection to this utilization of that Rule.
[3] Although an increasing number of states by legislation have required a defendant in a criminal case to disclose to the prosecution before trial his intention to rely on an alibi, Maryland has no comparable enactment. Such statutes, so long as they grant reciprocal rights of disclosure to the defendant, have withstood constitutional challenge. Compare Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (Florida statute requiring defendant to disclose witnesses to be used in establishing alibi but granting corresponding rights to the accused does not violate due process or privilege against self-incrimination) with Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) (Oregon statute requiring disclosure of alibi witnesses violative of fourteenth amendment due process where no reciprocal discovery rights given to defendant). See generally Annot., 45 A.L.R.3d 958 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1657870/ | 934 S.W.2d 727 (1996)
Jon Alan ASHCRAFT, Appellant,
v.
The STATE of Texas, Appellee.
No. 13-92-264-CR.
Court of Appeals of Texas, Corpus Christi.
August 22, 1996.
Rehearing Overruled December 5, 1996.
*731 Glen A. Barnard, Harlingen, Alfredo Padilla, Brownsville, for Appellant.
Luis V. Saenz, District & County Attorney, John A. Olson, Asst. County & District Attorney, Robert H. Moore, Jr., Assistant County (Criminal Dist.) Attorney, Brownsville, Robert Huttash, State Prosecuting Attorney, Matthew W. Paul, Assistant State Attorney, Austin, for Appellee.
Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.
OPINION
YANEZ, Justice.
Appellant, Jon Alan Ashcraft, was convicted of burglary of a habitation and assessed punishment at seventy-five years in prison and a $5,000 fine. On original submission, the majority of this Court held that the search warrant failed to show probable cause for the search and seizure of stolen property from appellant's home, and we reversed the *732 trial court's judgment and remanded the cause for a new trial. Ashcraft v. State, No. 13-92-264-CR (Tex.App.Corpus Christi, August 31, 1996) (not designated for publication). The State challenged our holding and sought discretionary review from the Court of Criminal Appeals. That Court summarily granted review of ground two of the State's petition and remanded the case to us to consider 1) whether the State sufficiently established probable cause as to the heroin portion of the search warrant and 2) whether the invalid portion of the search warrant could be severed from the valid portion.[1]Ashcraft v. State, No. 1182-94 (Tex.Crim. App. December 21, 1994) (per curiam) (not designated for publication). We affirm the trial court's judgment.
Appellant was arrested after police executed a search warrant purporting to authorize a search for both heroin and stolen property. We held that the search warrant was invalid because the affidavit supporting the warrant failed to allege sufficient facts to establish probable cause that appellant was in possession of stolen property located at his residence. In its petition for discretionary review, the State did not dispute that the warrant was defective as to the search for stolen property. However, the State contends that the warrant affidavit alleged sufficient facts to establish probable cause that appellant sold heroin from his residence. Therefore, the State argues that the valid portion of the warrant authorized the police officers' search of the premises and the seizure of stolen property found on the premises pursuant to the plain view doctrine.
On remand, appellant asserts, in point one, that the search warrant was not based on probable cause, that the evidence seized was the result of an illegal search, and that the trial court erred in admitting that evidence. Appellant contends that probable cause is lacking because the warrant's supporting affidavit, based upon information gained by informant hearsay and by police observation, fails to establish the informants' credibility, reliability, and basis of knowledge.
A warrant may issue for the police to search a certain place and seize certain items only if supported by an affidavit showing facts and circumstances within the affiant's knowledge that would warrant a person of reasonable caution to believe that a specific offense has been committed and that property resulting from or evidencing the offense is located at the particular place to be searched. See U.S. Const. amend. IV; TEX. CONST, art. I, § 9; TEX.CODE CRIM. PROC. ANN. arts. 18.01(b), (c) and 18.02(1), (7) (Vernon 1977 & Supp.1995); see also Berger v. New York, 388 U.S. 41, 55-56, 87 S.Ct. 1873, 1881-82, 18 L.Ed.2d 1040 (1967). The existence of probable cause is determined upon "sufficient and substantial facts," based upon a practical common sense consideration of the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230, 238-39, 103 S.Ct. 2317, 2328, 2332-33, 76 L.Ed.2d 527 (1983); Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim.App.1990); Mason v. State, 838 S.W.2d 657, 659-60 (Tex.App.Corpus Christi 1992, pet. ref'd). Credibility, reliability, and basis of knowledge no longer need to be established by separate and independent facts. However, they remain highly relevant factors in determining, by the totality of the circumstances, whether probable cause exists. Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex. Crim.App.), cert. denied, 488 U.S. 848, 109 S.Ct. 127, 102 L.Ed.2d 101 (1988); Morin v. State, 800 S.W.2d 328, 329 (Tex.App.Corpus Christi 1990, no pet.); Dees v. State, 722 S.W.2d 209, 215 (Tex.App.Corpus Christi 1986, pet. ref'd). We do not engage in a de novo review of the affidavit's sufficiency. We give the magistrate's determination great deference. Johnson, 803 S.W.2d at 289. The adequacy of the affidavit is determined by the information contained within its four corners. Cerda v. State, 846 S.W.2d 533, 535 (Tex.App.Corpus Christi 1993, no pet.).
*733 Here, the officers secured their search warrant on the strength of the following affidavit:
On June 23, 1991 about 3:30 p.m. Detective John Byrum and Detective Nicholas Araiza were on surveillance of a suspected drug dealer residing at 1710 South Parkwood Harlingen, Texas. Affiant has received reliable information from several informants[,] and the information obtained appeared to be in accordance with what information affiant was already aware of. The information received was that the suspect, Jon Ashcraft[,] was selling heroin to heroin addicts at the residence located at 1710 South Parkwood[,] Harlingen, Texas. The suspect was also known to be involved in burglaries of residences in the area known as the Parkwood Subdivision in Harlingen, Texas. On this particular day affiant and Detective John Byrum set up surveillance of the residence at 1710 South Parkwood[,] Harlingen, Texas. Affiant and Detective Byrum observed a yellow Nissan truck with two passengers arrive at the residence at 1710 South Parkwood. The male and female passengers were waiting around a carport for about 15 minutes until the suspect John Ashcraft came out of the house. The three appeared to be in the process of making a drug deal as is common practice with drug dealers and users. The couple left right after an apparent exchange and were later stopped by a Harlingen police unit away from the suspect's residence. The couple was identified as Augustin Pena and Juanita Torres of San Benito. The couple gave voluntary statements after being warned of their constitutional rights. Information obtained from the couple verified that heroin was being sold by John Ashcraft at his residence at 1710 South Parkwood [,] Harlingen, Texas.
When information is supplied by informants, the totality of circumstances outlined in the affidavit must establish probable cause. Gates, 462 U.S. at 232-38, 103 S.Ct. at 2329-32; Cassias v. State, 719 S.W.2d 585, 588 (Tex.Crim.App.1986); Dees, 722 S.W.2d at 215. While probable cause may be based upon hearsay, the hearsay must be credited at each level in order to meet constitutional requirements. Hennessy v. State, 660 S.W.2d 87, 91 (Tex.Crim.App.1983). Informant hearsay may be credited by showing that the informant has given reliable, credible information in the past, or by police corroboration. Cerda, 846 S.W.2d at 535; see also Polanco v. State, 475 S.W.2d 763, 766 (Tex.Crim.App.1971). Here, the affiant officer made no attempt to identify the informant or to demonstrate the reliability, credibility, or basis of the informant's knowledge. However, the police may corroborate informant hearsay by their own surveillance. Polanco, 475 S.W.2d at 766.
Based upon the hearsay information, Officers Araiza and Byrum became suspicious of appellant for heroin dealing. They began watching appellant's house for more indicia of such criminal involvement. The magistrate is entitled to rely upon information supplied by the police officers' own observations and upon information supplied by fellow officers engaged in a common investigation. Johnson, 803 S.W.2d at 289. In Texas, the affidavit must be more than a "mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause." Id. at 288. The magistrate must not be asked merely to ratify the bare conclusions of others. Id.
Here, affiant's statements that "the three appeared to be in the process of making a drug deal as is common practice with drug dealers and users" and that "the couple left after an apparent exchange," are too conclusory by themselves to establish probable cause. However, at least one Texas case has held that a similar statement"[the officer] observed the appellee engaged in a narcotics transaction"was sufficient when accompanied by other credible, reliable information. See State v. Cantu, 785 S.W.2d 181, 184-85 (Tex.App.Houston [14th Dist.] 1990, no pet.). We therefore examine the adequacy of other information in this affidavit for corroboration of the officers' observations.
An informant's declarations against the informant's own penal interest *734 may be used to corroborate the reliability of information in an affidavit. See Abercrombie v. State, 528 S.W.2d 578, 583-85 (Tex.Crim. App.1974) (opinion on reh'g) (where search warrant affidavit revealed that unnamed informer made a declaration against penal interest, the affidavit sufficiently established the reliability and credibility of the informer). Araiza's affidavit says that the couple in the truck was stopped, given constitutional warnings, and gave statements confirming police suspicions that a drug transaction had occurred. The magistrate is authorized to make reasonable inferences from the facts stated in the affidavit. Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991), cert. denied, 502 U.S. 1107, 112 S.Ct. 1205, 117 L.Ed.2d 444 (1992); Hennessy, 660 S.W.2d at 90. We hold that the magistrate could reasonably have concluded that the couple admitted to purchasing heroin from appellant. Such admissions by the couple were declarations against their own penal interests which may be used to corroborate the reliability of information in the search warrant affidavit. Accordingly, we conclude that, based upon the totality of circumstances outlined within the four corners of the affidavit, the magistrate had a substantial basis to believe that appellant sold the couple heroin and that more of the drug could be found at his house. Probable cause existed with regard to heroin dealing because the police observations were corroborated by the couple's declarations against penal interest. Therefore, although no valid search warrant existed with respect to the stolen property, the warrant was valid as to heroin. Cf. Oubre v. State, 542 S.W.2d 875, 877 (Tex.Crim.App.1976).
However, a defect in the warrant does not render the warrant invalid as a whole. Walthall v. State, 594 S.W.2d 74, 79 (Tex.Crim.App.1980); Dowler v. State, 777 S.W.2d 444, 449 (Tex.App.El Paso 1989, pet. ref'd). The invalid portion of the warrant can be severed from the valid portion. Walthall, 594 S.W.2d at 79. A warrant that is valid in part is sufficient in allowing the lawful entry of the police to execute the warrant. Id.
The search warrant for drugs permitted the officers to lawfully enter appellant's home that he shared with his mother. The police testified that when they arrived at appellant's house, they immediately placed him under arrest, informed him they had a warrant to search the premises, and gave him Miranda[2] warnings. Araiza testified that appellant acknowledged that he understood his rights. Araiza then asked appellant where he kept the heroin and "stolen property that he might have." Appellant cooperated and showed the officers where he kept the heroin and stolen property. Following appellant's directions, the officers found the heroin in a film canister, a computer under the bed, a shotgun in the closet, and a television set in a storage shed behind the house. Additionally, Araiza testified that many of the stolen items were "out in the open."
Therefore, the facts show that the police were legally on the premises pursuant to the valid portion of the warrant relating to heroin, appellant received Miranda warnings, and appellant cooperated and directed the police to the locations of the heroin and stolen property. Accordingly, we hold that the evidence procured as a result of this particular search was admissible. Our holding is limited to the facts of this case where the warrant for drugs is the type of search that is broad in scope and allows the police to search in every nook and cranny of the house. In their search for drugs, the police would have discovered the items, including the computer under the bed, the shotgun in the closet, and the television in the storage shed. These latter items matched the description of stolen property that the officers had from an offense report of the burglary of 802 Ebony, the residence for which appellant was indicted in this case. Moreover, the police's discovery, in appellant's house, of fifty-seven items of electronic equipment, including televisions, VCRs, stereos, and video games, gives credence to the officers' reasonable suspicion that these items were stolen. Therefore, while a valid portion of a search warrant does not automatically validate the seizure of items under an invalid part of the *735 warrant, we conclude that under the facts of this case, seizure of the heroin and stolen property was proper. We overrule appellant's point one.
By point two, appellant contends that the search warrant violated the federal and state constitutions because it is a general search warrant which, on its face, failed to describe either the place to be searched or the persons or things to be seized. Appellant further alleges that a copy of the supporting affidavit was neither attached to the warrant nor left with him or his mother.
When a defendant seeks to suppress evidence, the burden of proof is initially on the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). "As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State." Id.
A valid search warrant must sufficiently identify "as near as may be" the person, place or thing to be searched. TEX. CONST. art. I, § 9; TEX.CODE CRIM. PROC. ANN. arts. 1.06, 18.04 (Vernon 1977). A warrant that does not contain the place to be searched, the items to be seized, or the person alleged to be in charge of the premises is not invalid provided that the warrant incorporates by reference a sufficiently specific affidavit to support it. See Turner v. State, 886 S.W.2d 859, 864 (Tex.App.Beaumont 1994, pet. ref'd); Gonzales v. State, 743 S.W.2d 718, 719 (Tex.App.Houston [14th Dist.] 1987, pet. ref'd). It is well-settled law in Texas that a description contained in an affidavit limits and controls the description contained in the warrant. Rios v. State, 901 S.W.2d 704, 706 (Tex.App.San Antonio 1995, no pet.); see also Faulkner v. State, 537 S.W.2d 742 (Tex.Crim.App.1976) (holding that affidavit incorporated by reference and stapled to warrant could be used to aid description found in warrant). The failure to physically attach the affidavit to the warrant is not a violation of the search warrant statutes because article 18.06(b) of the Code of Criminal Procedure only requires that the warrant and a written inventory be served upon the owner of the premises to be searched. Tex.Code Crim. Proc. Ann. art. 18.06(b) (Vernon Supp.1996); Turner, 886 S.W.2d at 864; Gonzales, 743 S.W.2d at 720 (article 18.06(b) does not require a copy of the affidavit for the warrant to be provided). Absent some showing of prejudice or harm, the failure to provide a copy of the affidavit does not render the search invalid. Gonzales, 743 S.W.2d at 720; see also Robles v. State, 711 S.W.2d 752, 753 (Tex.App.San Antonio 1986, pet. ref'd) (holding that failure to deliver a copy of search warrant and itemized copy of the warrant return to defendant, in absence of showing of injury, reveals no error).
Appellant is correct that the search warrant failed to name the persons to be arrested, the place to be searched, or the items to be seized. However, the warrant incorporates the affidavit by reference, and the affidavit specifically identifies the place to be searched, the property to be seized, and the person in charge of the premises.[3] Although the warrant was presented to appellant when it was executed, the affidavit was not. However, the record shows that the affidavit was physically present at the search site. In fact, Officer Araiza testified that he had the affidavit in his car. The record also reflects that appellant's mother was given a copy of the return. We hold *736 that the "general search warrant" is not invalid because the affidavit was referenced in the warrant and that the failure to provide appellant with a copy of the affidavit did not render the search invalid. We overrule point two.
By point three, appellant asserts that the admission of his confession into evidence violated his right under the Fourth Amendment of the United States Constitution and Article 1, § 9 of the Texas Constitution. Appellant argues that his two confessions were involuntary because: 1) he did not waive his right to an attorney since he did not initial that part of the waiver; 2) his confessions were made on the basis of threats and promises made by the police; and 3) he was medicated at the time the statements were made.
Detective Araiza testified that upon arriving at appellant's house, he showed appellant the search warrant, arrested him, and informed him of his Miranda rights. The detective then asked appellant where he kept the heroin and stolen property. Araiza stated that he neither threatened appellant nor did he threaten to jail appellant's mother. Araiza did tell appellant that his mother could be held accountable for any stolen property found at the house. By this statement, Araiza testified that he was suggesting that if the officers were to find the stolen property without appellant's cooperation, then appellant's mother could be held accountable for the stolen property. According to Araiza, it is normal police procedure to inform the occupants of the house that anyone in the house can be held responsible for drugs or stolen property found. Appellant then showed the officers where the drugs and stolen items were.
At the police station, the officers again read appellant his rights, and he stated that he understood his rights. Thereupon, he initialed and signed the statement waiving his rights and confessed to the burglaries in the Parkwood neighborhood. However, no initials appear beside that portion of the statement waiving his right to have a lawyer present during questioning. Nevertheless, appellant did not ask for an attorney to be present while he was interviewed. Araiza testified that he made no promise to appellant nor did he use force or coercion to obtain the confession.
Before appellant gave his statement, he told Araiza that he was a heroin addict and that he had used some earlier in the morning. During the interview, appellant told the officers that he anticipated experiencing withdrawal symptoms; however, the officers observed no signs of withdrawal. Appellant also complained of back pain and, towards the end of his statement, requested Tylenol 3 with codeine. Officer Byrum stated that appellant asked for the medication, and Byrum said he would get it. He did not promise to get the medication for appellant only if appellant finished making the statement. Appellant received no medication until after he gave his statement. Byrum retrieved appellant's prescribed medicine from his home and gave appellant the pills as prescribed. According to the policy of the Harlingen Police Department, inmates may be given prescribed medication while they are in jail.
The next day, appellant was given the medication at 9:00 a.m., 12:00 p.m., and 4:00 p.m. Appellant was arraigned on this day. At his arraignment, Andres Hernandez, another person being arraigned that day, testified that appellant "looked all strung out" and that he looked drunk or on downers or pills. After the arraignment, appellant volunteered to be taken to the Parkwood neighborhood where he would point out the houses he had burglarized. During the ride, appellant said that he was sick and experiencing withdrawal symptoms, but Byrum testified that appellant did not exhibit any symptoms. Araiza stated that Byrum gave appellant some of the said medication during the ride.
Upon their return to the station after the ride, appellant gave a second statement. Again, the officers read appellant his Miranda rights, and appellant initialed and signed the document waiving his rights. The time given in the second statement reflects that it was made at 12:00 p.m., which is the time that appellant received his medication. Araiza stated that appellant received no medication during the making of the statement and that he observed no signs of withdrawal prior to or during the statement. The contents of the second statement consisted of a *737 list of addresses of houses that appellant had identified as houses he had burglarized.
Araiza testified that throughout the interviews, appellant appeared normal and coherent and spoke in a clear voice. Araiza further stated that appellant was in a good mood and joked with the officers. Appellant wanted to talk about the burglaries and said he was glad it was all over. Araiza believed that appellant understood what his rights were and that he voluntarily relinquished those rights.
To meet constitutional standards, a confession must be both voluntary and taken in compliance with Miranda. Martinez v. State, 645 S.W.2d 322, 324 (Tex. App.Corpus Christi 1982, no pet.). The determination of whether a confession is voluntary must be based on the totality of circumstances surrounding its acquisition. McCoy v. State, 713 S.W.2d 940, 955 (Tex. Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). When a question is raised as to the voluntariness of a statement of an accused, the trial court must hold a hearing outside the presence of the jury to determine if the accused made the statement freely and voluntarily. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (Vernon 1979).
The State bears the burden of proof to show that the statement was voluntary. Gentry v. State, 770 S.W.2d 780, 789 (Tex.Crim.App.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1013 (1989). The State must satisfactorily explain the accused's allegations of coercion in order to satisfy its burden of proof. Farr v. State, 519 S.W.2d 876, 880 (Tex.Crim.App.1975). The State need not rebut appellant's assertions; it only needs to controvert them. Muniz v. State, 851 S.W.2d 238, 252 (Tex. Crim.App.1993). With controverted evidence, the trial court is the sole trier of facts and the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Id.; Jacobs v. State, 787 S.W.2d 397, 400 (Tex.Crim.App.1990); McCoy, 713 S.W.2d at 955. The trial court can reject or accept the witnesses' testimony. Kelly v. State, 621 S.W.2d 176, 179 (Tex. Crim.App.1981). This Court's review of the trial court's findings is limited to a determination of whether the trial court abused its discretion. Id.; Garcia v. State, 829 S.W.2d 830, 833 (Tex.App.Dallas 1992, pet. ref'd). If the trial court's resolution on the controverted issue of the voluntariness of a confession is supported by the evidence, we will not disturb the trial court's decision. Muniz, 851 S.W.2d at 252.
A. Right to Counsel
Appellant contends that his confession should have been suppressed because of an invalid waiver of his right to counsel. A defendant may waive his Miranda rights provided the waiver is made voluntarily, knowingly, and intelligently. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). Only if the totality of circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran, 475 U.S. at 421, 106 S.Ct. at 1141.
While defendant's signing of a prepared statement which included pre-printed averments indicating that the signer understood his rights and freely waived them is not determinative of the question of affirmative waiver, it is significant evidence. Martinez, 645 S.W.2d at 323. Appellant's argument that his failure to initial the portion of the waiver relating to right to counsel is analogous to the argument rejected by the court in Jacobs v. State, 787 S.W.2d 397 (Tex.Crim.App.1990).
In Jacobs, appellant contended that his refusal to sign the bottom of the magistrate warning form creates a reasonable presumption that appellant did not intend to waive his right to counsel or talk to officers without counsel being present. In dismissing Jacobs' argument, the court merely stated that appellant presented no case law to support the theory that such a refusal invoked his Fifth Amendment right to counsel. Jacobs, 787 S.W.2d at 401.
*738 Ashcraft made two different statements. In his first statement, he did not initial the right to counsel portion of the statement. In his second statement, he initialed all of the subparts. In Jacobs, the court dismissed the argument that a failure to sign a waiver of a right is equivalent to invoking that right without expressly ruling on the issue. We find that appellant's failure to initial that part of the statement waiving his right to counsel creates a presumption that he did not waive his right and that he thereby invoked that right. A defendant's signing of the waiver and statement benefits the State and signifies that the defendant did indeed waive his rights. However, a review of the totality of the circumstances surrounding the interrogation reveals that the statement was uncoerced and that appellant had the requisite level of comprehension to enable the trial court to properly conclude that appellant had waived his Miranda rights. Moran, 475 U.S. at 421, 106 S.Ct. at 1141.
Although appellant may have failed to initial the portion at issue, he did in fact initial the portion that averred that he understood "all of my rights as stated above," which included the right to counsel, and that he voluntarily waived them. (emphasis added). The State presented witnesses who testified that police officers, on numerous occasions, warned appellant of his right to counsel and right to remain silent. Other than the absence of appellant's initials, there is no evidence in the record showing that appellant ever invoked his right to counsel. The testimony demonstrated that appellant was not confused or under duress when the warnings were given. Contrarily, appellant joked with the officers, stated that he understood his rights, and was eager to talk about the burglaries. Thus, the trial court did not abuse its discretion in finding that the confession was taken in compliance with Miranda.
B. Inducement, Force, or Coercion
Appellant next asserts that the trial court should have suppressed the confessions because the police threatened and coerced him into confessing by threatening to jail his mother and withholding medication until appellant confessed. Appellant also suggests that he could not have knowingly, intelligently, and voluntarily confessed since he was under the influence of a narcotic and/or the medication.
In determining whether a confession was improperly obtained based on the ground that it was induced by the promise of some benefit to defendant, such promise must be 1) positive, 2) made or sanctioned by a person in authority, and 3) of such character as would be likely to influence the defendant to speak untruthfully. Jacobs, 787 S.W.2d at 399; Fisher v. State, 379 S.W.2d 900, 902 (Tex.Crim.App.1964). Ashcraft claimed that Detective Araiza threatened to arrest his mother and promised not to arrest her if he cooperated. The testimony of appellant's mother reflected his claim. The State presented Araiza's testimony in which he stated that he made no threats or promises and that no force or coercion was used. Araiza did tell appellant that his mother could be held accountable for any stolen property found on the premises. Araiza further testified that it was normal police procedure to tell the occupants of the house that they can be held responsible. Araiza also told appellant that "it would be easier if he cooperated and let us know where he had the drugs in the house." Appellant cooperated and led the police to the drugs and stolen property because he did not want his mother involved. Prior to appellant's first confession, Araiza asked him if he understood that his mother might be held accountable, and appellant said he understood. In ruling on a motion to suppress the evidence, it is within the trial court's province to determine whether appellant received a positive and unequivocal promise from a party in authority. By denying the motion to suppress the confession, the trial court answered the question in the negative. The trial court did not abuse its discretion in doing so.
Appellant's inducement argument is also based on his claim that an officer promised to get him medication as soon as he finished the confession. Appellant complained of back pain during his first confession and requested his medication which was Tylenol 3 with codeine. Officer Byrum said that he would get the medicine for him. *739 Byrum averred that he did not promise to procure the medication provided appellant finished the confession. Appellant received the medication later that evening after Byrum retrieved it from appellant's house. Appellant failed to show that the police positively and unequivocally promised medication in return for a confession.
We now address appellant's assertion that his confessions were involuntary since he was under the influence of heroin and/or the codeine medication. Appellant had taken heroin the morning of his arrest. Later that evening, during his first confession, appellant said he anticipated experiencing withdrawal symptoms but the officers observed none. The next day, June 24, appellant received his medicine per prescription at 12:00 a.m., 4:50 a.m., 9:00 a.m., 12:00 p.m., and 4:00 p.m. Appellant was arraigned the morning of June 24. Hernandez, also being arraigned, testified that Ashcraft looked high and strung out. During his ride through the neighborhood later that morning, appellant said he was experiencing withdrawal symptoms but, again, the officers observed none. Araiza mentioned that he believed Byrum gave appellant some medication during the ride. Upon returning to the station, appellant made his second confession at 12:00 p.m., the same time he had received his medication.
Araiza testified that appellant received no medication during the making of the second confession. Araiza did not observe appellant exhibiting any withdrawal symptoms prior to or during the second statement. Byrum stated that he was familiar with some symptoms that heroin addicts experience during withdrawal such as shakiness and getting horribly sick. According to Byrum, appellant did not show these signs; rather, he appeared normal and coherent. The officers consistently testified that appellant seemed normal and coherent and understood the proceedings. Appellant wanted to talk about the burglaries and volunteered to show them the houses he had burglarized.
The State's evidence contradicted appellant's assertions. The trial judge was the sole judge of the credibility of the witnesses at the hearing on the voluntariness of the confession. Because there is evidence in the record to support the trial court's finding that the confession was freely and voluntarily given, we cannot rule that the trial court abused its discretion. We hold that the trial court did not err in denying appellant's motion to suppress the confessions and overrule appellant's point three.
In his brief on original submission, appellant alleges in his second point of error that the trial court erroneously admitted evidence of extraneous, unadjudicated offenses in the punishment phase of the trial. Appellant objects to the testimony of three State witnesses who related details of other burglaries that occurred prior to the date of the present offense. The witnesses' testimony implicated appellant although they testified that they did not know who committed the burglaries, no one was arrested for the burglaries, and they did not know appellant.
The first witness, Deanna Bourgeois, testified that her house door had been kicked in and her home burglarized. When the prosecutor asked Bourgeois if she knew what items were taken and to describe her feelings as a burglary victim, appellant objected that the questions were immaterial and irrelevant. The trial court overruled the objection as too general. Appellant's point on appeal does not comport with the objection made at trial; therefore, appellant has not preserved this complaint for review. TEX.R.APP. P. 52(a); Martinez v. State, 867 S.W.2d 30, 40 (Tex. Crim.App.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994).
Dennis Narup, the second witness, testified that his father's house on 802 East Parkwood was burglarized in July 1990. Narup stated that the burglar pried open the patio doors and ransacked the house. Appellant's only objection to this witness was that he had violated the Rule by being present during the first witness' testimony. This objection does not comport with the argument raised on appeal and, therefore, is not before us for review. TEX.R.APP. P. 52(a).
Appellant objected to the third witness on grounds that his testimony pertained to an extraneous offense. The third witness, Ted Narup, testified that he lived at 802 East Parkwood and that his home had been burglarized. The State argued for admission of this evidence claiming that this was the same *740 home that appellant admitted to burglarizing twice in his second confession. Appellant's extraneous offense objection was sufficient to preserve this error.
The Court of Criminal Appeals construed article 37.07, § 3(a) of the Code of Criminal Procedure to provide that even if deemed relevant to sentencing by the trial court, evidence is not admissible at punishment unless 1) it is permitted by the Rules of Evidence, and 2) if the evidence sought to be admitted is evidence of an extraneous offense, it satisfies article 37.07, § 3(a)'s definition of prior criminal record. Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Crim.App. 1992). Prior criminal record means a final conviction in a court of record, a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged. Act of June 15, 1989, 71st Leg., R.S., ch. 785, § 4.04, 1989 Tex. Gen. Laws 3471, 3492 (amended 1993) (current version at TEX.CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (Vernon Supp.1996)). Thus, it is error for a trial court to admit evidence of unadjudicated, extraneous offenses during the punishment phase in the trial of a noncapital offense. Grunsfeld, 843 S.W.2d at 526.[4] No distinction is made between uncharged bad acts committed prior to or after the offense for which the defendant is being prosecuted. McMillian v. State, 865 S.W.2d 459, 460 (Tex.Crim.App.1993). Accordingly, we hold that the trial court erred in admitting Ted Narup's testimony relating to the unadjudicated, extraneous offense of burglary.
Having found error in the punishment phase, we must now determine whether this error was harmless beyond a reasonable doubt in the jury's assessment of punishment. TEX.R.APP. P. 81(b)(2); Harris v. State, 790 S.W.2d 568, 584 (Tex.Crim.App. 1989); Morin v. State, 800 S.W.2d 328, 330 (Tex.App.Corpus Christi 1990, no pet.). Evidence relating to the burglary of Ted Narup's residence was already admitted during the guilt/innocence phase of the trial when appellant's second confession, which listed the residence as one he had burglarized, was admitted. At the punishment phase, the jury is allowed to consider all the evidence introduced at the guilt/innocence phase. Additionally, evidence of this offense was admitted through Dennis Narup's testimony without objection from appellant. Therefore, any error in admitting Ted Narup's testimony was harmless. We overrule point two from appellant's original brief.
Having overruled all of appellant's points of error, we affirm the judgment of the trial court.
NOTES
[1] We addressed these very issues in another burglary case involving appellant. See Ashcraft v. State, 900 S.W.2d 817, 826-29 (Tex.App.Corpus Christi 1995, one pet. ref'd & one pet. dism'd). The two cases involved the same search warrant, affidavit, and facts relating to the execution of the warrant; therefore, our analysis in that case is applicable to the present case, and we draw extensively from it.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[3] The affidavit states in relevant parts as follows:
1. There is in Cameron County, Texas a suspected place described and located as follows:
A brick structure residence light brown in color bearing an address of 1710 South Parkwood Harlingen, Texas and to include any and all buildings having the same physical address as 1710 South Parkwood Harlingen, Texas. Included in this property will be any and all vehicles at this address.
2. Said suspected place is in charge of and controlled by each of the following named parties (hereafter call "suspected party" whether one or more) to wit:
John Ashcraft D.O.B. 8/3/55 and other persons known to affiant.
3. It is the belief of affiant, and affiant hereby charges and accuses that said suspected party has possession of and is concealing at said suspected place in violation of the laws of Texas the following described personal property, to wit:
Heroin, cocaine and stolen property.
[4] After the Grunsfeld decision, the legislature amended article 37.07, § 3(a), effective September 1, 1993, to allow for the admission of evidence of unadjudicated, extraneous offenses by providing that permissible evidence at the sentencing phase includes the following:
the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. (Emphasis added).
Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 5.05, 1993 Tex. Gen. Laws 3589, 3762. The amended statute is inapplicable here because it was amended subsequent to appellant's commission of the offense and trial. The 1993 amendment is reflected in the current version of the article. See TEX.CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (Vernon Supp.1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1698279/ | 626 So.2d 476 (1993)
STATE of Louisiana
v.
Harold Ray PORTER.
No. CR93-431.
Court of Appeal of Louisiana, Third Circuit.
November 3, 1993.
*477 Don M. Burkett, Many, for State of Louisiana.
W. Charles Brown, Mansfield, for Harold Ray Porter.
Before STOKER, DOUCET and SAUNDERS, JJ.
SAUNDERS, Judge.
Defendant, Harold Ray Porter, was charged by bill of information with attempted second degree murder, a violation of LSA-R.S. 14:27 and 14:30.1. In November of 1991, Porter was found incompetent to stand trial although upon review, in June of 1992, he was found competent to stand trial. After trial, in September of 1992, the jury, in an 11-1 verdict, found Porter guilty of attempted second degree murder. Porter was sentenced to 30 years at hard labor. Porter now appeals his sentence and conviction.
FACTS
On June 16, 1991, David Meshell and Tammy Neel gave a ride to Ruby Smith and Porter. An argument occurred between Porter and Smith. Porter was sitting in the front passenger seat, while the victim, Ruby Smith, was seated in the back seat behind Porter. During the argument, Porter pulled out a knife and lunged over the back seat at Smith. Ruby Smith received fourteen stab wounds. David Meshell stopped the automobile and pulled Tammy Neel out of the car. Meshell then proceeded to get Porter off of Smith by hitting Porter over the head several times with a tire tool. Meshell took Smith to the Sabine Medical Center. Porter also appeared at the medical center whereupon he was placed under arrest.
DISCUSSION
We first note that the bill of information charges Porter with the crime of attempted second degree murder, a violation of LSA-R.S. 14:27 and 14:30.1. The bill of information states:
"He attempted with specific intent to commit the offense of second degree murder, the killing of a human being, or had a specific intent to inflict great bodily harm on Ruby Smith."
This language was read to the jury prior to the start of the trial.
When the attempt statute is invoked and the charge is attempted second degree murder, it is required that the person have a specific intent to kill a human being. See State v. Guin, 444 So.2d 625 (La.App.3d Cir. *478 1983). Therefore, the bill of information is defective in that it contains the language "or had a specific intent to inflict great bodily harm on Ruby Smith."
Recently, a similar case was decided by the Louisiana Supreme Court in State v. Cavazos, 610 So.2d 127 (La.1992). In Cavazos, the defendant was convicted of attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1 in 1981. The bill of information misdefined the offense insofar as it referred to his specific intent "to kill or inflict great bodily harm." The trial court, in a post-conviction proceeding, granted relief finding that the erroneous, but unobjected to, comments and allegations in the bill of information deprived the defendant of due process by creating an unacceptable risk that the jury convicted the defendant of the wrong offense. Attempted second degree murder requires the state to prove that the offender acted with a specific intent to kill and the intent to inflict great bodily harm is not an element of attempted second degree murder. The supreme court granted the state's writ and reversed.
The supreme court held that such errors, if not objected to by the defense counsel, do not require reversal of a defendant's conviction if the trial court properly instructs the jury at the close of the trial. In Cavazos, the trial court explicitly instructed the jurors that a conviction for attempted second degree murder required a finding that the defendant had the specific intent to kill the victim. The Cavazos' holding would arguably require the reversal of a defendant's conviction when the court does not properly charge the jury at the close of the case.
In the present case, the trial court did not properly instruct the jury at the close of the trial. In fact, the trial court misstated the law and instructed the jurors that the state, to prove attempted second degree murder, was required to prove that the offender acted with a specific intent to kill or inflict great bodily harm.
The trial judge charged the jury, beginning with a reading of LSA-R.S. 14:27 regarding attempt. The trial judge then read LSA-R.S. 14:30.1 regarding second degree murder which states that "A. Second degree murder is the killing of a human being: (1) When the offender has the specific intent to kill or to inflict great bodily harm; or...." The trial judge then summarized the instructions stating that the jurors must find that the defendant had the specific intent to commit the crime of second degree murder and must find that the defendant satisfied the elements of "intent."
The trial court continued by defining the responsive verdict of attempted manslaughter, again incorrectly. The trial judge read LSA-R.S. 14:31 regarding manslaughter and stated that in order to convict the defendant of attempted manslaughter, the jury must find that the defendant had the specific intent to commit the crime of manslaughter and that the defendant met the elements of "intent."
We note that attempted manslaughter, as in attempted second degree murder, requires a finding of specific intent to kill, a finding not necessary for a manslaughter conviction. See State v. Turner, 440 So.2d 834 (La.App.2d Cir.1983); State v. Dean, 528 So.2d 679 (La.App.2d Cir.1988); State v. Salone, 605 So.2d 229 (La.App.2d Cir.1992).
While being charged by the trial judge, the court received a note from the jury requesting that the definition of the different charges be given again. The court resumed and again charged the jury that "second degree murder means as it applies to this case, is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm." Attempted manslaughter and aggravated battery were again defined. The foreman then requested that the court explain attempt again.
After deliberations, the jury returned a verdict of guilty of attempted second degree murder.
Based upon the recent Cavazos holding of the Louisiana Supreme Court, we find that there was a substantial probability that the jurors may have convicted Porter under an incorrect definition of the crime charged which mandates setting aside the conviction on due process grounds even in the absence *479 of a contemporaneous objection. See State v. Williamson, 389 So.2d 1328 (La.1980).
This case compares more closely with the recent case from our circuit, State v. Holmes, 620 So.2d 436 (La.App.3d Cir.1993). In Holmes, we reversed the defendant's conviction for attempted second degree murder due to an erroneous jury instruction which included the intent to inflict great bodily harm as an element of attempted second degree murder. Although no objection was made to the erroneous jury instruction, we held that due process required the reversal of Holmes' conviction and that the case be retried where it was questionable whether the jury would have convicted the defendant had it known that it had to find a specific intent to kill. In Holmes, as in the case sub judice, the jury was instructed incorrectly twice by the trial judge, once in response to a request for clarification.
Holmes, in discussing whether the circumstances warranted an exception to the contemporaneous objection rule of LSA-C.Cr.P. art. 841, quoted from State v. Williamson, 389 So.2d at 1331, as follows:
"Nonetheless it is within the province of this reviewing court to entertain complaint of Constitutional violations on appellate review notwithstanding that consideration of such complaint more often than not is deferred until filing of a writ of habeas corpus. This Court's usual pretermission of such issues stems from the need of an evidentiary hearing which can only be had incident to the writ of habeas corpus. The record before us, however, bears full and sufficient proof of the error which no posterior hearing could augment. For this reason, the need for delay is obviated.
In the case at hand the asserted error involves the very definition of the crime of which defendant was in fact convicted. Such an error is of such importance and significance as to violate fundamental requirements of due process.
Furthermore to defer consideration until defendant were to file a writ of habeas corpus would only serve to prolong the occasion when defendant might again be tried, with resultant prejudice to the state's opportunity to reassemble its witnesses and evidence. For these reasons we find it preferable now to reverse defendant's conviction and sentence and order him retried.
Because reversal of defendant's conviction results not from evidentiary insufficiency but from trial court error, and upon defendant's urging in brief on this appeal, he is subject to being retried for attempted second degree murder, the crime of which convicted. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)."
Holmes, supra, 620 So.2d at 438-439.
As in Holmes, we find that in the interest of fundamental fairness and judicial economy, we should deal with this issue now rather than on an application for post-conviction relief in the future.[1]
For the foregoing reasons, the conviction and sentence of Harold Ray Porter, defendant herein, are reversed and the case is remanded to the trial court for a new trial.
REVERSED AND REMANDED.
STOKER, J., concurs and assigns written reasons.
STOKER, Judge, concurring.
I fully agree with the majority's reversal of defendant's conviction on due process grounds and the remand for a new trial. I add this concurrence to distinguish the case before us from State v. Latiolais, 453 So.2d 1266 (La.App.3d Cir.), writ denied, 458 So.2d 125 (La.1984) of which I was the author. In a somewhat similar situation a panel of this court, of which I was a member, distinguished Latiolais recently in State v. Sittig, 625 So.2d 392 (La.App.3d Cir.1993), Number Cr93-3-4 on the docket of this court. However, it is perhaps more important to note here that there is a division in this circuit on the issue of the applicability of the contemporaneous *480 objection rule (LSA-C.Cr.P. art. 841) in cases like this where a trial judge gives fundamentally erroneous instructions. See State v. Holmes, 620 So.2d 436 (La. App.3d Cir.1993), and particularly the vigorous dissent by Chief Judge Domengeaux. 620 So.2d at 440.
In Latiolais the erroneous jury instruction (that an intent to inflict great bodily harm was sufficient to support a jury finding of guilty of attempted second degree murder) did not prejudice the defendant or rise to the point of depriving the defendant of due process. Any reasonably minded jury could have found Latiolais guilty of attempted second degree murder considering the fact that Latiolais repeatedly jabbed the victim about the head and chest area with the point of a screw driver. The stabbing was sufficient to have killed the victim and did cause blindness. The victim was left bleeding by the side of the road as if he were dead.
In the case before us the jury very well might have found Harold Ray Porter guilty of attempted second degree murder based solely on the erroneous instruction that intent to inflict great bodily harm was sufficient. Porter's conduct was erratic and inappropriate. The bizarre action of slashing at someone in the backseat of an automobile while the actor is seated in the front seat does not on its face justify a conclusion that murder was intended. Due process requires that Porter be given a trial in which the jury is instructed that he was guilty of the attempt only if he had a specific intent to kill. If no such specific intent is found, the jury could find the defendant guilty of a battery.
The reversal and remand for a new trial of Harold Ray Porter is consistent with our action in Holmes and Sittig. It is not in conflict with Latiolais.
As observed in Holmes, such disposition as we make here does not create or recognize a plain error rule of general applicability with reference to the contemporaneous objection rule set forth in LSA-C.Cr.P. art. 841; but a fundamental error in the definition of a crime given in jury instructions undermines the reliability of the fact-finding finding process in a criminal trial. Such errors warrant an exception to the contemporaneous objection rule. State v. Arvie, 505 So.2d 44, 48 (La. 1987). It amounts to a deprivation of due process of law. State v. Williamson, 389 So.2d 1328 (La.1980).
NOTES
[1] In light of our decision on this issue, any discussion as to Porter's assignments of error is pretermitted as unnecessary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1806727/ | 619 So.2d 186 (1993)
Russel HUGUET and Lola Huguet, Plaintiffs-Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant-Appellee.
No. 92-895.
Court of Appeal of Louisiana, Third Circuit.
June 2, 1993.
*187 J. Wendel Fuselier, for plaintiffs-appellants Russell Huguet and Lola Huguet.
Jerry Joseph Falgoust, for defendant-appellee State Farm Ins. Co.
Before DOMENGEAUX, C.J., and YELVERTON and SAUNDERS, JJ.
DOMENGEAUX, Chief Judge.
Plaintiffs, Russel and Lola Huguet, appeal a trial court judgment finding that they validly selected UM limits in a lower amount than the liability limits of their automobile policy with State Farm. We affirm.
On August 5, 1991, Russel Huguet was driving his 1991 Ford Explorer, with his wife Lola and their grandchildren as passengers, when the Explorer was struck by an uninsured/underinsured vehicle. On October 22, 1991, Russel and Lola filed the instant suit to recover damages under the UM portion of their policy with State Farm. State Farm filed a motion for summary judgment, seeking a determination that the Huguets' policy had UM limits of only $10, 000/$20,000. The trial court agreed with State Farm and rendered the judgment from which the plaintiffs appeal.
In support of its motion, State Farm introduced the Huguets' policy, the affidavit of Warren Lasyone, an underwriting supervisor, and the deposition of Russel Huguet.
The declarations page of the policy lists the named insured as "HUGUET, LOLA & RUSSELL." The page also shows liability limits of $100,000/$300,000 and UM limits of $10,000/$20,000. At the top of the page is the policy number "446 0884-18C;" on the bottom of the page is the notation, "REPLACED POLICY XXXXXXX-XXB."
In his affidavit, Warren Lasyone stated that the Huguet policy initially provided coverage for a 1985 Chevrolet, with effective dates of December 28, 1989 through June 28, 1990. He further stated that on June 1, 1990, Russel Huguet signed a selection of lower UM limits and that on June 18, 1990, Russel Huguet deleted coverage for the 1985 Chevrolet and replaced it with *188 coverage for a 1991 Ford Explorer. Mr. Lasyone explained that the policy number reflected a "C" instead of "B" when the Explorer replaced the Chevrolet so that State Farm would be informed of the change in the vehicle under the same policy. The policy was renewed from June 28, 1990 through December 28, 1990; from December 28, 1990 through June 28, 1991; and from June 28, 1991 through December 28, 1991, with the accident occurring in the last renewal period.
In his deposition, Mr. Huguet admitted that he signed the form selecting lower UM limits. He stated that he traded in the Chevrolet when he bought the Explorer and that he did not make any changes in his policy other than the selection of lower UM limits.
The plaintiffs argue that the selection of lower UM limits is invalid because the form was not signed by both Russel and Lola. In opposition to State Farm's motion, the Huguets introduced their own affidavits in which they each stated that Lola did not authorize or appoint Russel as her legal representative.
We find no merit to this argument. La. R.S. 22:1406 D(1)(a)(i), which mandates UM coverage in an amount not less than liability coverage, also provides:
[H]owever, the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing, as provided herein, the coverage or selects lower limits.... (Emphasis added.)
In Oncale v. Aetna Casualty and Surety Co., 417 So.2d 471 (La.App. 1st Cir. 1982), the court held that the rejection of UM coverage by the wife only was valid; therefore, the husband was precluded from recovery under the UM provision of the policy after he was injured by an uninsured driver. The policy in Oncale was issued in the husband's name only, but the court found the wife was a "named insured" as defined in the policy and was therefore "any insured named in the policy" under the statute. In the instant case, there is no question that Russel and Lola Huguet are both listed as named insureds in the State Farm policy. The fact that their names appear on the policy as "HUGUET, LOLA & RUSSELL" is unimportant. The policy clearly lists two persons as named insureds, and under La.R.S. 22:1406 D(1)(a)(i), either named insured has the authority to select lower UM limits. This authority comes from the statute, see Oncale, supra at p. 475; hence, the affidavits of the Huguets are irrelevant.
Russel executed the selection of lower limits form on June 1, 1990. Subsequently, on June 18, 1990, he replaced coverage for his Chevrolet with coverage for the Explorer, with this action resulting in a new policy number. La.R.S. 22:1406 D(1)(a)(i) also provides that the mandated UM coverage need not be provided in "a renewal, reinstatement, or substitute policy" where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.
In Donaghey v. Cumis Insurance Society, 600 So.2d 829 (La.App. 3d Cir.1992), this court held that the addition of a new car to an automobile policy amounted to an increase in the policy's coverage, even though bodily injury limits were not increased. However, in Allen v. State Farm Mutual Automobile Ins. Co., 617 So.2d 1308 (La.App. 3d Cir.1993), we recently recognized that the substitution of one vehicle for another does not convert an existing policy into a new policy. In Allen, the plaintiff testified that "the salesman took care of getting rid of the car for me." In that case we held that a second selection of lower UM limits was unnecessary where the new vehicle was not added as a second vehicle to the policy. In the instant case, Mr. Huguet testified that he traded in the Chevrolet when he bought the Explorer. The record clearly supports a finding that the Explorer was substituted for the Chevrolet, rather than added as a second vehicle. Under the statute, the mandated UM coverage does not apply to a substitute policy; hence, the Huguets were not required to execute a second selection of lower UM limits when they purchased and insured the Explorer. The form selecting *189 lower UM limits that was signed by Russel on June 1, 1990 remained in effect when the Huguets insured their Explorer and through the subsequent renewals of the substituted policy.
In Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992), our Supreme Court recently reiterated the requirements for a valid rejection or selection of lower UM limits:
This court has held a valid rejection or selection of lower limits must be in writing and signed by the named insured or his legal representative. Henson v. Safeco Insurance Companies, 585 So.2d 534, 538 (La.1991); Giroir v. Theriot, 513 So.2d 1166, 1168 (La.1987); A.I.U. Insurance Co. v. Roberts, 404 So.2d 948, 951-52 (La.1981). Further, the insurer must place the insured in a position to make an informed rejection of UM coverage. Henson, 585 So.2d at 539. In other words, the form used by the insurance company must give the applicant the opportunity to make a "meaningful selection" from his options provided by the statute: (1) UM coverage equal to bodily injury limits in the policy, (2) UM coverage lower than bodily injury limits in the policy, or (3) no UM coverage.
609 So.2d at 197.
Reviewing the form executed by Mr. Huguet on June 1, 1990, we find that it meets all the requirements of Tugwell. The printed form informs the insured of his right to UM coverage in amounts not less than the limits of bodily injury liability coverage, as well as the insured's right to uninsured motor vehicle property damage. The form then provides three options for the insured: he may select lower limits of UM coverage, with blanks provided for the insertion of the lower amounts; he may select UM coverage for bodily injury only and therefore reject UM property damage coverage; or he may reject UM coverage completely. On the form in question, the insured selected the first option with the limits of $10,000/$20,000 written in the blanks. The form is similar to the one cited with approval in Allen, supra.
We are aware of the strong public policy behind the statutory requirement of UM insurance and that insurance policies are to be liberally construed in favor of UM coverage. Henson v. Safeco Insurance Companies, 585 So.2d 534 (La.1991). However, in the instant case we are presented with evidence that a named insured admitted selecting lower UM limits on a form that complied with the Supreme Court's most recent requirements. Additionally, the subsequent substitution of one vehicle for another created only a substitute policy rather than a new policy. Under these circumstances, we can find no error in the trial court's finding that State Farm is entitled to judgment as a matter of law that the Huguets' policy affords UM limits of $10,000/$20,000.
For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to appellants, Russel and Lola Huguet.
AFFIRMED.
SAUNDERS, J., dissents and assigns reasons.
SAUNDERS, Judge, dissenting,
I respectfully dissent as to the conclusion of the majority that the husband had the authority to reject UM coverage (or select lower limits) on behalf of his wife, a named insured on the policy. Specifically, I believe there exists a material issue of fact as to the authority of Mr. Huguet that precludes the granting of the motion for summary judgment in this case. I disagree with the conclusion of the majority with regard to this issue.
For the foregoing reasons, I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1688460/ | 717 So.2d 1115 (1998)
Jean PIERRE, Petitioner,
v.
HANDI VAN, INC., and Humana Workers' Compensation Services, Respondents.
No. 98-1530.
District Court of Appeal of Florida, First District.
September 28, 1998.
*1116 B. Ellen Schnepper of Barbara E. Schnepper, P.A., Miami, for Petitioner.
Amy J. Ardman of Rigell, Leal & Ring, P.A., Fort Lauderdale, for Respondents.
ERVIN, Judge.
Appellant, Jean Pierre, filed a petition for writ of certiorari challenging the order of the judge of compensation claims (JCC) which permits the employer, Handi Van, Inc., and carrier, Humana Workers' Compensation Services (respectively, the E/C), to schedule an ex parte conference with an expert medical advisor (EMA). We have jurisdiction. Adelman Steel Corp. v. Winter, 610 So.2d 494 (Fla. 1st DCA 1992). Because section 440.13(4)(c), Florida Statutes (Supp.1994), authorizes ex parte conferences with health care providers and not with EMAs, we grant the petition and quash the order.
This is a case of first impression. Section 440.13(4)(c) provides:
It is the policy for the administration of the workers' compensation system that there be reasonable access to medical information by all parties to facilitate the self-executing features of the law. Notwithstanding the limitations in s. 455.241[[1]] and subject to the limitations in s. 381.004,[[2]] upon the request of the employer, the carrier, or the attorney for either of them, the medical records of an injured employee must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons, if the records and the discussions are restricted to conditions relating to the workplace injury. Any such discussions may be held before or after the filing of a claim without the knowledge, consent, or presence of any other party or his agent or representative. A health care provider who willfully refuses to provide medical records or to discuss the medical condition of the injured employee, after a reasonable request is made for such information pursuant to this subsection, shall be subject by the division to one or more of the penalties set forth in paragraph (8)(b).
(Emphasis added) (footnotes added). The JCC concluded that Dr. Robert Butler, an EMA appointed by the JCC, was a "health care provider" subject to section 440.13(4)(c), and granted the E/C's request for an ex parte conference. This was error.
In reaching our decision, we note that the language in subsection (4)(c), permitting ex parte discussions between health care providers and the respective parties, was but one of several subsections added to section 440.13 at the special session of the 1993 Florida Legislature. See Ch. 93-415, § 17, at 98-111, Laws of Fla. In addition to the above subsection, the legislature amended section 440.13 by including within it subsections (5),(6),(7), (8) and (9), all of which in should be read in pari materia. See § 1.04, Fla. Stat. (1993). In applying this rule to the amended statute, we conclude that the legislature intended the added subsections to address chronologically the progression of a worker's injury from its initial occurrence through subsequent disputes.
Section 440.13, as amended, addresses the roles of three separate categories of physicians or practitioners placed within the amended act: health care providers, independent medical examiners (IMEs), and EMAs.[3] For example, subsection (4) outlines the obligations of health care providers to keep employers and carriers, as well as the division, informed regarding the claimant's medical status. Included therein is the provision at issue in this case, subsection (4)(c), which furthers the self-executing nature of the compensation *1117 system by ensuring that the E/C has ready access to medical information involving the claimant.
Continuing with this sequential order, we note further that subsection (5) provides assistance once a dispute has arisen between the claimant and the E/C regarding overutilization, medical benefits, compensability or disability. It authorizes either party to select an IME to examine the claimant and provide an opinion regarding such issues. Subsections (6), (7) and (8) address resolution of problems involving overutilization and billing errors and disputes. Subsection (9) finally permits either party or the JCC to seek an examination of the claimant by an EMA, who is intended to be completely neutral and to provide what is, in effect, a definitive opinion regarding the claimant's injuries in the event of disagreement between health care providers on the medical evidence, the claimant's need for additional treatment, or the claimant's ability to return to work. A presumption of correctness attaches to the EMA's opinion. See § 440.13(9)(c).[4] Because of the nearly conclusive effect of an EMA's opinion, the amended statute requires that the EMA selected not only be qualified to render the opinion, but also be impartial, a fact alluded to by this court's recent decision in Johns Eastern Co. v. Matta, 23 Fla. L. Weekly D1846, 717 So.2d 91 (Fla. 1st DCA 1998). See also § 440.13(9)(a).
Viewing subsection (4)(c) according to the logic and progression of the statute as a whole, it appears the legislature intended that the records and opinions of treating and examining physicians and other practitioners be freely available to E/Cs, and that claimants no longer enjoy the right to be present during discussions between E/Cs and those providers. Once disputes have arisen and ripened, however, requiring the assistance of EMAs, the case has become indisputably adversarial so that ex parte discussions with such experts are not appropriate. The procedure afforded for the selection of EMAs is thus a final resort for the resolution of medical disputes, and the experts so chosen should not be subject to even the "appearance of impropriety," which would result from private meetings with either party.
As we earlier observed, the disputed language at issue is found only in section 440.13(4)(c), generally pertaining to the requirement that health care providers inform E/Cs of treatment furnished to injured employees on forms furnished by the division. Such language was not repeated in any other subsection of section 440.13. In that the legislature has not clearly and expressly extended this language to EMAs, we conclude the JCC departed from the essential requirements of the law in allowing the E/C to conduct an ex parte conference with the EMA.
Accordingly, the petition for writ of certiorari is
GRANTED.
BOOTH and VAN NORTWICK, JJ., concur.
NOTES
[1] Chapter 455 pertains to the regulation of professions in general, and section 455.241 deals with the confidentiality of and patient access to medical records.
[2] Chapter 381 governs public health, and section 381.004 addresses HIV testing and the confidentiality thereof.
[3] We do not mean to suggest by the above enumeration that IMEs and EMAs do not fall within the general definition of health care providers. Clearly they do. See § 440.13(1)(i). It is rather our position, for the reasons stated infra, that the pertinent language of 440.13(4)(c) was not intended to extend to health care providers who are also selected as EMAs.
[4] This presumption was carried over from section 440.13(2)(j)3 a, Florida Statutes (1993). The former statute, however, did not use the term "expert medical advisor" in referring to the person selected by the JCC in the event of disagreement in the opinions of physicians, but rather "health care provider." Moreover, there was no requirement, as it exists in the present statute, that the provider be impartial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1843602/ | 694 So.2d 574 (1997)
Rodney LEWIS and Rose Averitte Lewis, Plaintiffs-appellants,
v.
Roosevelt V. LENARD and Allstate Insurance Company and Shelter Insurance Company, Defendants-appellees.
No. 29,529-CA.
Court of Appeal of Louisiana, Second Circuit.
May 7, 1997.
*575 Madeline M. Slaughter, Monroe, for Plaintiffs-Appellants.
Hudson, Potts & Bernstein by Charles W. Herold, III, Monroe, for Defendants-Appellees.
Before MARVIN, C.J., and GASKINS and CARAWAY, JJ.
CARAWAY, Judge.
In our review of this summary judgment, we are asked to decide whether an insurer should have obtained a new, valid rejection of uninsured motorist coverage where the insured, following her divorce, had the policy reissued in her maiden name alone, without her former husband, but with the same coverage on the same vehicle. The trial court granted the insurer, Shelter Mutual Insurance Company, summary judgment finding that the policy issued to the insured, Rose Averitte Lewis, was a "renewal" policy and that her original waiver of UM coverage had survived the renewal. We affirm.
Facts
On June 13, 1990, Rose Averitte Lewis and Rodney Lewis, husband and wife, applied for automobile insurance with Shelter Mutual Insurance Company. The policy was issued in the names of Mr. and Mrs. Lewis. Rose executed a valid written waiver of UM coverage. The policy originally covered only a 1984 Ford Tempo, which was community property.
Two years later, on June 30, 1992, Rose and Rodney were divorced. Rose began using her maiden name again, Rose Mary Averitte. As part of the property settlement, Rose obtained the 1984 Ford Tempo. Subsequent to the divorce, Rose requested that the coverage for the 1984 Ford be placed solely in her maiden name. She did not request any additional or different coverage. The original 10/20/10 coverage continued. Shelter reissued Rose a policy with the changes requested effective on the renewal date of the old policy with a different policy number.[1] No new UM waiver was executed. Rodney retained the former policy number to insure a van which apparently may also have been previously added to the policy.
Rose was in an accident while driving the Ford Tempo on December 22, 1993, over a year after the policy changes mentioned above were implemented. The policy at the time of the accident had been renewed quarterly several times. Rodney, whom she remarried nine days after the accident, was a guest passenger in the vehicle. They filed suit against the driver of the other automobile, *576 his insurer and Rose's insurer, Shelter, for UM coverage. Plaintiffs admit that Rose Averitte Lewis validly rejected UM coverage when the original policy of insurance was issued. They contend, however, that subsequent to the divorce, Shelter issued Rose a new policy of insurance requiring that she execute a new waiver of UM coverage.
The trial court, after initially rejecting the motion, granted Shelter's motion for summary judgment on grounds that the policy issued to Rose after her divorce was a "renewal" of the initial policy in which a valid UM rejection was executed. According to La. R.S. 22:1406 D(1)(a)(i), UM coverage
... need not be provided in or supplemental to a renewal, reinstatement, or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer or any of its affiliates. (Emphasis added).
Plaintiffs appeal, claiming that the trial court erred in finding that the policy in effect on the date of the accident was a renewal of the policy issued to Rose and Rodney in 1990, and that the valid UM rejection signed by Rose for that policy was in effect and valid in her 1993 policy.
Discussion
Appellate courts review the grant of a summary judgment de novo under the same criteria governing the trial court's consideration of whether a summary judgment is appropriate. Thomas v. Goodson, 26,356 (La.App. 2d Cir.1994), 647 So.2d 1192, 1193. Under La. C.C.P. art. 966, a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992). A dispute as to the issue of whether, as a matter of law, an insurance policy provides or precludes coverage to a party can be properly resolved within the framework of a motion for summary judgment. Thomas v. Goodson, supra; Garcia v. Certified Lloyds Insurance Co., 598 So.2d 1278 (La.App. 4th Cir.1992), writ denied, 604 So.2d 969 (La.1992).
Initially, we note that La. R.S. 22:1406 D(1)(a)(i) additionally provides that "any insured named in the policy" may reject the UM coverage. Therefore, the waiver of the UM coverage by Rose was effective regarding the initial issuance of the policy in the names of both spouses.
La. R.S. 22:1406, as quoted above, provides, in part, that a prior rejection of UM coverage continues in a "renewal, reinstatement or substitute policy." These three policy settings were discussed by the Third Circuit in Bryant v. Viking Insurance Company of Wisconsin, 579 So.2d 1241 (La.App. 3d Cir.1991):
La. R.S. 22:636.1(A)(5) defines a "renewal" policy as one issued and delivered to replace "at the end of the policy period" a policy previously issued and delivered by the same insurer. A renewal can therefore occur only at the end of the policy period it renews; it is not a renewal if the second issuance occurs after the end of the first policy period. A renewal contemplates uninterrupted coverage.
* * * * * *
The distinction between a substitute and reinstated policy is given in 18 Couch on Insurance 2d Secs. 69.1-69.3, Revival and Reinstatement. If there is coverage and an agreement is made for a different coverage, there is a substitution of policies. To reinstate an insurance policy mean to restore the insured to all the benefits accruing under the policy contract. For there to be a reinstatement, it is necessary that there be an interval during which the insured no longer is covered by insurance.
Id. at 1242 and 1243.
With these three events allowing for the original UM coverage to continue, various disputes have arisen in the jurisprudence regarding what types of changes, if any, may occur to the original policy upon renewal, instatement or substitution.[2] Even the definition *577 for "renewal" under La. R.S. 22:636.1(A)(5),[3] which is the only one of the three events statutorily defined, speaks in terms of a replacement policy at the end of the prior policy period without stating that no change can occur to such replacement policy. For example, if the insured drops from his policy the comprehensive and collision coverage on the vehicle at the end of the policy period renewing the critical limits for bodily injury liability upon which UM coverage under the statutory scheme turns, the replacement policy is not clearly precluded as a renewal under the statutory definition. Likewise, while we agree with Bryant that a reinstatement policy occurs after an interval during which the insured no longer was covered by insurance, will any change occurring under the terms of a reinstated policy, regardless of its bearing upon the initial selection of the limits of bodily injury liability and UM coverage, preclude the new policy from being a "reinstated policy" as that term is used in the statute?
Regardless of whether any change in policy terms may occur at the time of renewal or reinstatement, the event of a substitute policy clearly must encompass some change. In this regard, we do not view "substitute policy" to mean only that some type of actual substitution of vehicles or insureds must occur. The deletion of Mr. Lewis from the policy in this instance was a change in the policy which can be said to have resulted in a substitute policy. The determinant question is whether the change in the policy is material to the initial selection or waiver of UM coverage that would require the execution of a new selection or waiver.
In this instance, a policy bearing Policy No. 17-1-2757471-1 solely in the name of Rose Mary Averitte was issued subsequent to the divorce and became effective on the renewal date after her divorce, and subsequent renewals occurred at the end of each quarterly policy period, keeping the policy in effect through the date of the accident. Were there no changes in the policy, clearly no new waiver would be required under La. R.S. 22:1406. There was a change, however, in the policy number, and Rodney Lewis was deleted as a named insured.[4] Rose also had the policy put in her maiden name. Plaintiff argues that the deletion of Rodney Lewis from the policy, the change in the insured's name and the issuance of a new policy number constituted a material change in the policy, precluding the existence of either a renewal or substitute policy, thus requiring a new rejection of UM coverage.
First, we conclude that a change in policy numbers does not necessarily indicate a new policy has been issued rather than a renewal or substitute policy. In Maatki v. Moore, 760 F.Supp. 1180 (E.D.La.1991), on rehearing, the court held that a subsequent motor vehicle policy was a renewal policy rather than new policy and, therefore, the rejection of greater UM coverage that was valid and operative as to initial policy continued to be valid and operative as to the subsequent policy, even though the initial and subsequent policies had different policy numbers. The federal district court reached the conclusion that a change in policy numbers is of no legal significance citing Schwoch v. Sutor, 559 So.2d 552 (La.App. 2d Cir.1990), wherein a panel from this court observed that it was unnecessary to list a policy number on the *578 UM rejection form, "since policy numbers could change upon renewal or substitution."
Nor does the change of one's name on the policy amount to a material change since, obviously, in this instance, the named insured, who was also the party who executed the waiver, is still the same person. This is to say, there is no change in the named insured where the insured merely reverts to using her maiden name.
Finally, regarding the removal of an insured from a jointly titled policy and the incidental change in the nature of the ownership of the insured vehicle, we have found no Louisiana cases where this precise question was raised. An analogous situation occurred under Florida law, which is similar to Louisiana law regarding the rejection of UM coverage. In Kerr v. State Farm Mutual Automobile Insurance Co., 434 So.2d 970 (Fla. App. 5 Dist.1983), the court held that replacing the husband's name as the "named insured" with that of the wife who was an "additional insured" on an existing policy continued to provide the same coverage on the same vehicle after the husband's death and did not constitute a variation of the terms of the policy material enough to require the insurer to again offer UM coverage. In Kerr, as in this case, the ownership of the vehicle changed from community to sole ownership by the wife. Louisiana courts have also utilized the "material change" test employed in Kerr. See, e.g., Troha v. State Farm Ins. Co., supra.
Despite the change in the number of insureds from two persons to one, the first and last policies now in dispute insofar as they apply to Rose remain identical. There was a constancy of the insured who executed the waiver, the vehicle, and the stated "bodily injury liability" coverage which is the key to La. R.S. 22:1406 D(1)(a)(i). Further, Rose was not required by the insurer to fill out or sign a new application for coverage. Applying the test of materiality, we conclude under the particular facts of this case that amending a policy to delete coverage of an insured on the policy, where an original applicant makes the change, does not amount to a material change in the policy such that the reissued policy constitutes the issuance of a new policy. Any need to choose the technical label for the reissuance in this case, as either a renewal or substitute policy, is not present given the immateriality of the circumstances of this case. Rose Mary Averitte elected to reject UM coverage in her original application on her own behalf and on behalf of Rodney Lewis. She further admitted that it was her intention merely to remove her former husband's name from the policy, and not to make any changes to the policy coverage. Thus, we find that the original policy was merely amended and reissued, effective on the renewal date of September 13, 1992.
Conclusion
Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellant.
AFFIRMED.
NOTES
[1] While appellant argues that the policy issued to Rose in her own name did not occur at the end of a policy period and was therefore not a renewal, our review of the entire record indicates that the changes in the policy in question were effective as of September 13, 1992, the very first renewal date subsequent to her divorce. Rose continued to renew her policy on the quarterly renewal dates through December 13, 1993.
[2] See Wilkinson v. Louisiana Indemnity/Patterson Insurance, 96-0447 (La.App. 1st Cir. 11/8/96), 682 So.2d 1296; Dempsey v. Automotive Casualty Insurance, 95-2108 (La.App. 1st Cir. 6/28/96), 680 So.2d 675; Lovoi v. Ladreyt, 655 So.2d 387 (La.App. 5th Cir.1995), writ denied 656 So.2d 1031 (La.1995); Allen v. State Farm Mutual Automobile Insurance Company, 617 So.2d 1308, 1312 (La.App. 3d Cir.1993); Troha v. State Farm Ins. Co., 606 So.2d 89 (La.App. 3d Cir.1992); Mouton v. Guillory, 494 So.2d 1374 (La.App. 3d Cir.1986); Moore v. Young, 490 So.2d 519 (La. App. 4th Cir.1986); Myers v. Thibeaux, 365 So.2d 266 (La.App. 3d Cir.1978).
[3] La. R.S. 22:636.1(A)(5) provides, in pertinent part:
"Renewal" or "to renew" means the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term.
[4] Likewise, though the record is not entirely clear, a van which was apparently covered under the policy at the time of the parties' divorce was also deleted from the policy. However, for the same reasons expressed herein regarding the deletion of Rodney Lewis from the policy coverage, any deletion of the van does not change our conclusion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1858942/ | 16 B.R. 615 (1981)
In the Matter of Marc Philip RAPPAPORT, Debtor.
Marc Philip RAPPAPORT, Plaintiff,
v.
ORANGE SAVINGS BANK and New Jersey Higher Education Assistance Authority, Defendants.
Bankruptcy No. 81-0147.
United States Bankruptcy Court, D. New Jersey.
November 10, 1981.
Allan L. Tumarkin, Livingston, N.J., for debtor/plaintiff.
Grey J. Dimenna, Deputy Atty. Gen., Trenton, N.J., for New Jersey Higher Ed. Assistance Authority.
OPINION
D. JOSEPH DeVITO, Bankruptcy Judge.
Plaintiff debtor Marc Philip Rappaport seeks a discharge of certain educational debts contracted as student educational loans guaranteed by the New Jersey Higher Education Assistance Authority (HEAA). The parties having stipulated to all material facts, the sole question of law presented deals with the dischargeability vel non of those debts. The facts (undisputed) are as follows:
1. On November 24, 1980, the debtor filed a voluntary Chapter 7 petition, in which he scheduled a total of $31,534.46 of unsecured debts, with the single largest debt resulting from a series of educational loans granted by Orange Savings Bank and guaranteed by HEAA totaling some $13,300, which loans were utilized for educational purposes at the New Jersey College of Medicine. These loans were satisfied by the guarantor, HEAA. The bank demands that the complaint be dismissed as against it.
2. While employed in West Orange, New Jersey, the debtor entered into a monthly payment plan with the bank. Following payment of a small portion of the total debt, payments were intermitted upon the debtor's entry to medical school at the American University of the Caribbean at Montserrat in the West Indies. The debtor, presently attending that school as a full time student, is otherwise unemployed.
*616 3. The debtor, at present financially dependent upon his parents, is 27 years of age, appears to be in reasonably good health and to be making satisfactory progress in his medical studies at Montserrat, and will be attending that school for the next three years.
DISCUSSION
11 U.S.C. § 523[a][8] provides:
A discharge under section 727, 1141 or 1328[b] of this title does not discharge an individual debtor from any debt for an educational loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or a nonprofit institution of higher education, unless
(A) such loan first became due before five years (exclusive of any applicable suspension of the repayment period) before the date of the filing of the petition; or
(B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor's dependents.
The Court notes preliminarily that since the debtor was dismissed from the New Jersey College of Medicine and Dentistry in May of 1979, and having filed his petition in November of 1980, subject loans clearly could not have become due five years before the filing of the petition. Under such circumstances, the exception to nondischargeability carved out in subsection A of 523[a][8] is inapplicable.
The sole issue remaining is whether the excepting of that debt from discharge will impose an undue hardship on the debtor. The operative words here are "undue hardship". Upon a reading of the legislative history behind the student loan exception to discharge encapsulated in § 523[a][8] of the Code, it is clear that Congress was primarily motivated by a desire to reform a surfacing rampant abuse of the discharge process in the area of educational loans, specifically the persistent attempts to avoid payment of those loans. See Report of the Commission on the Bankruptcy Laws of the United States, H.R.Doc.No. 137, Pt. II, 93rd Cong., 1st Sess., 140 n. 14 (1973). "A few serious abuses of the bankruptcy laws by debtors with large amounts of educational loans, few other debts, and well-paying jobs, who have filed bankruptcy shortly after leaving school and before any loans became due, have generated the movement for an exception to discharge." H.R.Rep.No. 595, 95th Cong., 1st Sess., 133, reprinted in 1978 U.S. Code Cong. & Admin.News 5787, 6094.
Given the inherent vagueness of the phrase "undue hardship", the courts not unpredictably have taken to devising tests to aid in the appropriate determination. For example, in In re Wegfehrt, 10 B.R. 826, 830, CCH Bankr.L.Rptr.P. 68,057 (Bkrtcy.N.D.Ohio 1981), the court stated:
. . . . each bankruptcy case involving a student loan must be examined on the facts and circumstances surrounding that particular bankruptcy for the Court to make a determination as to "undue hardship." The bankruptcy court must determine whether there would be anything left from the debtor's estimated future income to enable the debtor to make some payment on his/her student loan without reducing what the debtor and his/her dependents need to maintain a minimal standard of living.
In the making of such determination, the Wegfehrt court suggests as an important consideration the relative proportion of the individual debtor's student loan obligations to total indebtedness, since "hardship" must be construed in the context of general debt. See id. at 830.
It is similarly clear that that Congress did not intend mere hardship, not even considerable hardship, to serve as the touchstone of discharge. "The generally accepted standard for determining the question of undue hardship is whether there are present such unique circumstances to render it less likely, or likely only with extreme difficulty or unlikely at all, that the bankrupt will within the foreseeable future be able to honor his commitment." *617 In re Densmore, 8 B.R. 308, 309, 7 B.C.D. 271, 3 C.B.C.2d 471 (Bkrtcy.N.D.Ga.1979). To say, as the Densmore court does, that there must be a showing of extraordinary circumstances, id., still leaves undefined the nature and perimeters of those extraordinary circumstances.
Some bankruptcy judges have tried to gauge the "extraordinary circumstances" sufficient to warrant discharge by detailed comparison of the debtor's regular income and expenses; see, e.g., In re Rice, 13 B.R. 614, 615-16, 4 C.B.C.2d 1343, 1345 (Bkrtcy. D.S.D.1981). But for reasons developed infra, the Court deems such an approach unrealistic in the case sub judice, since debtor has no present income, nor does he envision or seek remuneration during the remainder of his tenure as a medical student. The salient feature here is the debtor's future earning potential as a medical doctor, not the fact of his present unemployment. Indeed, in In re Warren, 6 B.R. 233, 6 B.C.D. 1058, CCH Bankr.L.Rptr.P. 67,711 (Bkrtcy. S.D.Fla.1980), the court, considering the plight of an unmarried female in her early twenties, financially dependent upon her parents, expressly ruled that the mere unemployment of the debtor (who had studied music and had been professionally employed as a flutist, but had not yet received her degree in music and had no current prospects of permanent full-time employment) was insufficient to establish undue hardship as contemplated under § 523[a][8][B] of the Code. 6 B.R. at 234.
This Court is of the view that there does not exist in the instant matter any evidence of such a unique set of circumstances that denying debtor a discharge from subject debt will cause him to suffer any hardship other than the hardship all debtors suffer when required to pay just debts. See In re Collier, 8 B.R. 909 (Bkrtcy. S.D.Ohio 1981).
Prevailing decisional law makes it plain that "undue hardship" is generally associated with a total incapacity now and in the future to pay one's debts for reasons not within the control of the individual debtor.
Generally, undue hardship has only been found where exigent circumstances exist which impair the debtor's ability to repay the loans, such as where the debtor has recently been through a divorce, receives no income from her ex-husband, and supports two children, one of whom required extensive medical treatment, In re MacPherson, 4 B.C.D. 950 (W.D.Wis.1978); or, where the debtor and her husband lived on a net monthly income of $560, and had incurred a $4,000 medical debt because of severe medical problems encountered by the couple's young baby. In re Bagley, 4 B.R. 248, 6 B.C.D. 404 (Bkrtcy.D.Ariz. 1980). These are the types of extreme hardship to which the exception to section 439A of the Higher Education Act [predecessor to 11 U.S.C. § 523[a][8] with which it is substantially similar] was meant to apply.
To illustrate the impassable gulf between the instant case and the type of situation to which the "undue hardship" exception was intended to apply, the case of In re Diaz, 5 B.R. 253, 2 C.B.C.2d 501 (Bkrtcy.W.D.N.Y. 1980), wherein the court deemed the situation there "a classic hardship case", is instructive. There, the debtor was 45 years of age with four children dependent upon her to varying extent for financial sustenance, divorced, with her husband confined to a mental institution. In addition, her children suffered from medical, dental and other health disorders for which she was unable to pay for required treatment. Debtor's necessary weekly expenses exceeded her income, with little likelihood that debtor's financial position would improve dramatically in the foreseeable future. By way of contrast, the debtor here may look forward to a lucrative future as a physician. As noted in In re White, 6 B.R. 26, 28, 22 C.B.C. 989, CCH Bankr.L.Rptr.P. 67,535 (Bkrtcy.S.D.N.Y.1980):
The whole point is that this bankrupt cannot show "undue hardship" just because the start of her career has been delayed . . . "Undue hardship" means more than present difficulty in starting out. If that difficulty were to control, there would be no significance to the *618 five-year period within which the discharge is not so easily available [referring to Higher Education Act of 1965, § 439A, 20 U.S.C. § 1087-3 (repealed 1978)].
Here again, Congress' intent in excepting from discharge the debt of the bankrupt student educated at public expense in the expectation that such learning would enhance future productivity, see 6 B.R. at 28, proved the dispositive consideration.
The future earning potential of the individual debtor is a recurrent theme in similar cases invariably resulting in nondischargeability of subject debt where such potential exists, notwithstanding present temporary inconvenience. In re Wegfehrt, 10 B.R. at 830; In re Bengal Trading Corp., 12 B.R. 693, 695 (Bkrtcy.S.D.Fla.1981); In re Rice, supra, 13 B.R. at 617, 4 C.B.C.2d at 1348; In re Henry, 4 B.R. 495, 497 (Bkrtcy. S.D.N.Y.1980); In re Brock, 4 B.R. 491, 494, 22 C.B.C. 775 (Bkrtcy.S.D.N.Y.1980); In re White, 6 B.R. at 29.
This Court feels obliged to observe that debtor had voluntarily entered into a repayment agreement and had, in fact, made a number of payments which ceased upon his entry into medical school in Montserrat. These events are not the result of circumstances beyond his control. See In re Price, 1 B.R. 768, 769 (Bkrtcy.D.Hawaii 1980), wherein the court, in denying the dischargeability of certain federally insured educational loan debts, ruled that any hardship to debtor and her family occasioned by her sending her children to private schools and incurring additional expenses, was brought about by her own volition.
Still other bankruptcy courts have held that one of the criteria to be considered in granting a discharge of a federally insured loan under the hardship provision of § 523[a][8][B] is whether a debtor has made a good-faith effort to negotiate deferment or forbearance of payment with a creditor. In re Rice, supra, 13 B.R. at 617, 4 C.B.C.2d at 1347; In re Archie, 7 B.R. 715, 719 (Bkrtcy.E.D.Va.1980). It does not appear that such effort has been made by the debtor here. Recognizing that debtor is not in a position to amortize the debt at this time, HEAA has made it known that it is amenable to a flexible, deferred payment plan.
For all of the foregoing reasons, the subject debt is deemed nondischargeable. Submit an Order in accordance therewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1774414/ | 654 So. 2d 843 (1995)
Marshall P. PLUMMER,
v.
MARRIOTT CORPORATION, Michael Johnston, Pendleton Detectives, Inc., and John Kloos.
No. 94-CA-2025.
Court of Appeal of Louisiana, Fourth Circuit.
April 26, 1995.
*845 I. Harold Koretzky, Elvige C. Richards, Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, L.L.C., New Orleans, Carlton J. Trosclair, Washington, DC, of counsel, for defendant/appellant.
Daryl A. Higgins, Thomas W. Darling, Windhorst, Gaudry, Ranson, Higgins & Gremillion, L.L.P., Gretna, for plaintiff/appellee.
Before KLEES, LOBRANO and LANDRIEU, JJ.
LOBRANO, Judge.
This appeal arises from a judgment in favor of plaintiff-appellee, Marshall Plummer, and against defendant-appellant, Marriott Corporation, in the amount of $650,000.00 for past, present and future mental anguish and lost wages for violation of Louisiana's Anti-Discrimination Statute, R.S. 23:1006.
FACTS AND PROCEDURAL HISTORY:
Marshall Plummer was hired by Marriott Corporation, a hotel chain, in 1972 following an honorable discharge from the military. Within three years, Plummer was promoted to Director of Security at the New Orleans Marriott Hotel.
In March of 1986, following thefts of hotel and guest property implicating the security department, an internal investigation resulted in the discharge of five of eleven security officers under Plummer's supervision. As part of the investigation, the entire security department was polygraphed, including Plummer. Plummer passed the test. The five security officers who were discharged failed the test. Employees in other departments were also polygraphed. Two housekeeping employees, and a housekeeping supervisor, were discharged after failing the polygraph test.
Marriott concluded that a change in Plummer's position as director of the security department was necessary. On March 20, 1986, Marriott management presented Plummer with four (4) options regarding his future with the hotel system: (1) move to a smaller property within the Marriott system as head of security; (2) remain at the New Orleans Marriott as the number two person in security; (3) remain at the New Orleans Marriott in another department; or (4) resign. The options were not reduced to writing. Present when the options were presented were Lucio Benedetto, Southern Regional Vice President, John Ceriale, outgoing General Manager in New Orleans and Bruce Gorelick, Resident Manager in New Orleans.
Ceriale and Benedetto told Plummer to take paid time off to consider the options. After the time off, Plummer was to notify Marriott of his decision. Plummer left as directed. Fifteen days later, Plummer went to see resident manager, Bruce Gorelick. A conversation took place between the two men much of which is the subject of this litigation. The conversation concerned the various options *846 available to Plummer. Following his conversation with Gorelick, Plummer went to see personnel director, Michael Johnston. They also discussed the various options. Following his conversations with Gorelick and Johnston, Plummer decided to resign. He drew up his letter of resignation and presented it to Gorelick on April 4, 1986. On April 18, 1986, Marriott, thru Michael Johnston, accepted Plummer's resignation. Upon resigning Plummer received a monetary package totaling approximately $151,000.00.[1]
On April 4, 1987, Plummer filed a Petition for Damages in Civil District Court of the Parish of Orleans. In his petition, Plummer alleged invasion of privacy, intentional infliction of emotional distress, defamation and racial discrimination in employment against Marriott Corporation, Michael Johnston, Pendleton Detectives and John Kloos. Prior to trial, Plummer dismissed the first three claims and defendants Pendleton Detectives and John Kloos.
A six day trial began June 13, 1994 on the issue of employment discrimination against Marriott and Johnston. On June 17, 1994, the trial court granted a directed verdict dismissing Johnston. After trial, the jury found that Plummer proved by a preponderance of the evidence that Marriott intentionally discriminated against, and constructively discharged, Plummer.[2] The jury also found that Marriott failed to prove that Plummer did not make a reasonable effort to seek similar employment.[3] The jury awarded Plummer $218,000.00 for past, present and future mental distress and anguish; $216,000.00 in past lost wages and $216,000.00 in future lost wages for a total award of $650,000.00. On July 25, 1994, the trial court denied Marriott's Motion for Judgment Notwithstanding the Verdict.
Marriott appeals the judgment of the trial court asserting the following assignments of error:
1) There was insufficient evidence to support the jury's finding that Marriott intentionally discriminated against, and constructively discharged, Plummer based on his race;
2) The jury erred by finding that Plummer mitigated his damages;
143) It was error for the trial judge to allow an award for front pay;
4) The jury abused its discretion in the amount of damages awarded to Plummer;
5) The trial judge erred by awarding prejudgment interest on post judgment damages;
6) The trial judge erred by permitting plaintiffs counsel to strike jurors for racially discriminatory reasons and in allowing plaintiffs counsel to refer to matters not in evidence and otherwise irrelevant.
THE LAW:
I. STANDARD OF APPELLATE REVIEW:
It is axiomatic that an appellate court may not disturb a jury's findings unless they are clearly wrong or manifestly erroneous. This well established principle was again explained and reiterated by our Supreme Court in the recent case of Ferrell v. Fireman's Fund Insurance Co., 94-1252 (La. 2/20/95), 650 So. 2d 742 wherein the Court quoted the following from Rosell v. ESCO, 549 So. 2d 840 (La.1989).
"It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of `manifest error' or unless it is `clearly wrong,' and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. * * * The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual *847 basis for the findings in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighted the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. * * * In applying the manifestly erroneousclearly wrongstandard to the findings below, appellate courts must constantly have in mind that their review function is not to decide factual issues de novo.
When findings are based on determinations regarding the credibility of witnesses, the manifest errorclearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong."
Ferrell at pps. 4, 5, 650 So. 2d 742.
See also, Stobart v. State, 617 So. 2d 880 (La.1993); Ambrose v. New Orleans Police Amb. Serv., 93-3099, 3110 and 3112 (La. 7/5/94), 639 So. 2d 216.
In guiding our review of this case we also find instructive Justice Lemmon's concurring opinion in Ambrose, supra, where he distinguishes manifest error as applied to factual findings, from the review standard for determining sufficiency of evidence. "The manifest error rule is a standard used by appellate courts to resolve conflicting factual evidence; it is not a standard for determining sufficiency of the evidence." Ambrose, supra, at p. 1 (concurring opinion), 639 So.2d at 223. The concurrence further instructs on the application of that principle as follows:
"In application, the manifest error rule becomes part of the standard for determining sufficiency of the evidence. The reviewing court first resolves any factual conflicts by application of the manifest error rule which dictates that the appellate court should not disturb the express or implied factual finding of the trier of fact, (footnote omitted) Accordingly, the reviewing court views all evidence in the light most favorable to the party who prevailed in the trial court, and then determines whether the evidence, consisting of the undisputed facts and of the disputed facts thus viewed under the manifest error rules, was sufficient to preponderate in favor of a conclusion that the plaintiff had proved every element of this cause of action."
Ambrose, at p. 2 (concurring opinion), 639 So.2d at 224.
II. LOUISIANA'S ANTI-DISCRIMINTION STATUTER.S. 23:1006:
Louisiana Revised Statute 23:1006[4] provides in pertinent part:
* * * * * *
"B. (1) it shall be unlawful discrimination in employment for an employer to:
(a) Intentionally fail or refuse to hire, refer, discharge, or to otherwise intentionally discriminate against or in favor of an individual with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, disability as defined in R.S. 51:2232(11), or national origin.
(b) Intentionally limit, segregate, or classify an employee in a way which would deprive an individual of employment opportunities, give a favor of advantage to one individual over another, or otherwise adversely or favorably affect the status of *848 an employee because of race, color, religion, sex disability as defined in R.S. 51:2232(11), or national origin.
* * * * * *
D. A plaintiff who has a cause of action against an employer for discrimination in employment may file a suit in the district court for the parish in which the alleged discrimination occurred seeking general or special compensatory damages, back pay, restoration of employment, related benefits, reasonable attorney's fees, and court costs." (emphasis added).
Because the Louisiana statute is similar in scope to the federal anti-discrimination prohibitions in Title VII of the Civil Rights Act of 1964, Louisiana courts have routinely looked to the federal jurisprudence for guidance in determining whether a claim has been asserted. See, Alphonse v. Omni Hotels Management Corp., 643 So. 2d 836 (La. App. 4th Cir.1994); Bennett v. Corroon and Black Corp., 517 So. 2d 1245 (La.App. 4th Cir.1987), writ den., 520 So. 2d 425 (La.1988).[5]
The plaintiff bears the ultimate burden of proving the defendant intentionally discriminated against the plaintiff based on race. St. Mary's Honor Center v. Hicks, ___ U.S. ___, ___, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993), citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981). However, the scheme of proof under federal jurisprudence requires that plaintiff first establish by a preponderance of the evidence, a "prima facie" case of racial discrimination. The elements of a prima facie case in a factual situation such as the one presented in the instant case are (1) the plaintiff is black; (2) he was qualified for the position; (3) he was discharged, either actually or constructively; and (4) the position remained open and was ultimately filled by a white male. St. Mary's Honor Center, supra, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).[6]
If a prima facie case is established, a presumption is created that the employer has unlawfully discriminated against the employee. The burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Should the defendant carry this burden, the plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981).
Determining whether a defendant met its burden of production is made without reference to whether the defendant was persuasive, and does not involve any credibility assessment. St. Mary's Honor Center, supra, ___ U.S. at ___, 113 S.Ct. at 2747. Once the defendant carries its burden of production, the presumption created by the prima facie showing is rebutted and "drops from the case". Id. at ___, ___, 113 S. Ct. 2747, 2749, citing Burdine, 450 U.S. at 255, 101 S.Ct. at 1094-95 (1981). To prove that discrimination was the real reason for the adverse action the plaintiff must show it would not have been taken but for discriminatory animus. See, Mechnig v. Sears Roebuck & Co., 864 F.2d 1359, 1364 (7th Cir. 1988).
Even an incorrect belief that an employee's performance was inadequate constitutes a legitimate non-discriminatory reason *849 for an employer's decision. It is not for the courts to decide whether they agree or disagree with an employer's good faith belief as to an employee's competence. Little v. Republic Refining Co. Ltd., 924 F.2d 93, 97 (5th Cir.1991), citing De Anda v. St. Joseph Hosp., 671 F.2d 850, 854 n. 6 (5th Cir.1982). Mere conclusory statements or personal beliefs by an employee that he was discriminated against are not sufficient to prove his employer discriminated against him. Little, supra, 924 F.2d at 96, citing, Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir.1983), cert, denied, 467 U.S. 1215, 104 S. Ct. 2658, 81 L. Ed. 2d 364 (1984).
To prove constructive discharge, the plaintiff must prove that the employer intended to and deliberately created such intolerable working conditions that the employee was forced into involuntary resignation. To find that a constructive discharge has occurred, the trier of fact must be satisfied that the working conditions to which the employee was subjected were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign. Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993) citing, Jurgens v. EEOC, 903 F.2d 386 (5th Cir. 1990) and Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980). The burden is on the employee to prove constructive discharge. Boze v. Branstetter, 912 F.2d 801, 804, 805 (5th Cir. 1990).
The intolerable conduct must be of a greater severity or pervasiveness than the minimum required to prove a hostile working environment Landgraf v. USI Film Prodacts, 968 F.2d 427, 430 (5th Cir.1992), aff'd ___ U.S. ___, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).
A single isolated instance of employment discrimination is insufficient as a matter of law to support a finding of constructive discharge. Watson v. Nationwide Insurance Co., 823 F.2d 360, 361 (9th Cir. 1987). Title VII policies are best served when the parties, where possible, attack discrimination within the context of their existing employment relationship. Watson, supra at 361. Thus, a plaintiff alleging a constructive discharge must show some aggravating factors, such as a continuous pattern of discriminatory treatment. Watson, supra at 361.
The mere existence of a grievance procedure and a policy against discrimination coupled with a plaintiffs failure to invoke the procedure does not insulate the employer from liability. These facts are relevant, but not necessarily dispositive. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 71-73, 106 S. Ct. 2399, 2408, 91 L. Ed. 2d 49 (1986).
With these legal principles in mind, and after careful review of the evidence, we hold: (1) the jury was clearly wrong in concluding that Plummer was constructively discharged; and (2) the evidence is insufficient to support a finding of racial discrimination.
In order to reach these conclusions, we review, in detail, the pertinent trial testimony
III. TRIAL TESTIMONY:
BRUCE GORELICK (Resident Manager)[7]
Bruce Gorelick testified that he became the resident manager of the New Orleans Marriott in September, 1984. In familiarizing himself with his employees, he concluded from Plummer's personnel file that Plummer was weak in leadership. Morale in the security department was low. Various security officers had filed complaints that Plummer showed favoritism in handing out discipline. Four black officers threatened to take jobs at another hotel because of alleged unfair treatment by Plummer. Gorelick stated that as manager he felt it was his responsibility to assist Plummer in improving his leadership and discipline skills. Gorelick testified that he did not doubt Plummer's integrity, but had received information from other managers who expressed some concern about his honesty. He also received comments about Plummer's strengths as head of security. He viewed any problems or weaknesses *850 of Plummer as a challenge for him to help Plummer overcome.
In evaluating Plummer's performance ratings before and after 1985, Gorelick stated that overall they were basically the same. He explained that each manager received two yearly evaluations. One was a financial evaluation in which general numerical ratings were given to determine if a yearly increase would be given. The second evaluation was a six part appraisal which was extremely detailed. This appraisal was to critique, coach and counsel managers as to specific areas of need in their performance. It was considered a learning tool.
Gorelick's initial evaluation (financial) of Plummer was in March of 1985, while the detailed evaluations were done in November, 1985. Plummer's strengths were in development and loss prevention and technical skills. He received a number one rating for each. In his financial review he received an overall rating of 2 which is commendable. He received a 3 in communication, which is considered competent. The November, 1985 detailed analysis also gave Plummer an overall evaluation of 2. Two 3's were given in communications and on-going critique. Of sixtyseven items listed under the "Performance Standards for Specific Positions," only three showed "needs improvements." Gorelick testified that the numerical ratings Plummer received after his arrival in 1985 were not out of line with those received in the past. This was true because his overall evaluation always exceeded the standard. The need areas stated in the past evaluations were the same as those given 1985. He explained that over the years the evaluation forms differed, and that comparing "apples to apples, they were both identical, same verbiage, `needs improvement'."
Gorelick testified that when he arrived as resident manager, that Plummer's office was in the hallway off of the garage near the employees entrance. He had no knowledge of any other office Plummer may have had prior to his arrival.
He admitted to asking Plummer to accompany Mr. Ceriale and his wife in the French Quarter on their jogging trips because of an incident where Mrs. Ceriale was verbally accosted.
He denied that Plummer's dining privileges were taken from him. He stated that because of a downturn in the economy, it was decided that hotel dining privileges would be scaled back for all managers, not just Plummer.
In 1985, upon learning from Mike Johnston, head of personnel, that Christmas gifts had been stolen, Gorelick informed Plummer and requested an investigation. He admitted denying Plummer's request to administer polygraph tests at that time and stated: "My reasoning was that I was not comfortable at that point, that there was any definition as to who should be polygraphed, why, what was the scope, you know how many people should be polygraphed, who should be polygraphed. So I didn't see any definition. And at that point, I didn't feel that there was sufficient reason to polygraph."
He stated that he was later informed by Johnston that an ex-employee, Angela Perkins, had implicated two security officers and several non-security employees in a hotel theft ring. Perkins also implicated two security officers in the theft of the Christmas gifts. At first Gorelick questioned Perkins' veracity. However, upon hearing the detailed information she provided about the Christmas gifts, as well as other thefts, he believed she was telling the truth. As a result of Perkins' statement, an executive decision was made to question those implicated and to polygraph the security department, including Plummer, as well as other employees. The questioning of those employees was to be done by the various department managers.
When the polygraph results showed that half the security department failed the test, the decision was made that this failure constituted a serious breach in security and that a change was needed because the "integrity of the department was shattered" and there was a "confidence issue". Gorelick stated that it was never suggested that Plummer be terminated. Instead, several options were presented to Plummer at the meeting attended by Lucio Benedetto, regional vice-president, John Ceriale, general manager and *851 Gorelick. Those options consisted of transferring to another hotel, remain in New Orleans in the number two security position, transfer to another department or resign. The options were reviewed with Plummer. None of the options were encouraged or discouraged. Plummer was asked if he felt he could take the demotion to the number two position and still be able to work under someone else. Gorelick testified that the purpose of posing this question to Plummer was to insure that he would consider this when making his decision. No specific other hotels or other departments were mentioned to Plummer at that time. However, Mr. Benedetto told Plummer that it may not be a bad idea to transfer. He told him "I would love to have you as part of my region as well." It was suggested that Plummer take some time off to consider the options before deciding. According to Gorelick, Plummer did not, at that time, state which option he preferred.
Approximately one week later, Plummer made an unannounced visit to Gorelick's office. Plummer asked Gorelick's opinion as to the options. Gorelick told Plummer that he would not tell him what decision to make. He gave ihim the pros and cons of each option, but did not encourage or discourage any one option. He testified that because Plummer came to see him unannounced, no calls had been made to find what other positions, if any, may be available. He told Plummer that he did not know of any opening at other hotels or other departments at that time. He also told Plummer that Mr. Benedetto would stand behind the options to transfer and would take care of it if Plummer decided to transfer. Gorelick described the conversation as cordial and believed Plummer came to him as a friend. He was surprised and disappointed when Plummer resigned because he considered him a valuable employee because of his tenure with Marriott. He stated that he had obtained approval in the past to upgrade Plummer's pay grade two steps in order to increase his salary above the maximum for his current pay grade. This was approved by Mr. Ceriale and Mr. Moyer. He testified that following Plummer's resignation, Plummer's position was filled by an Hispanic male transferred from Chicago. The person who filled the Chicago position was a black male transferred from security in St. Louis.
MICHAEL JOHNSTON (Personnel Manager)
Michael Johnston testified that he became head of personnel at the New Orleans Marriott in the summer of 1985.
Johnston described Plummer's performance as "that which satisfies the requirement of the position." He testified that the position "is being covered in a competent manner and the responsibilities are being handled and the standards are being met." He testified that in 1985 Marriott began a new appraisal system which was job specific. This change was implemented for all department management levels.
Johnston described his personnel department of consisting of nine employees including himself. His assistant, Percy Ewell, and three other employees were black. Marriott's overall employee ratio was 65% black, 10% Hispanic and 30% white.
Johnston testified that he requested that the security officers not use the bathroom next to the personnel office because they were hanging around the office several times per day. He complained to Plummer about this problem.
Johnston stated that when he arrived to begin his job as director of personnel, his office was located on the mezzanine floor. Plummer's office was already located on the rear dock.
Shortly after beginning his duties he was aware that an undercover investigation was being conducted because of a large number of thefts of both guest and hotel property. He testified that he and Plummer had purchased Christmas gifts for employees and had stored them in the personnel office. These gifts were stolen during the night. The following morning he reported the thefts to either John Ceriale or Bruce Gorelick and security.
Security began an investigation. Approximately two months later, an ex-employee, Angela Perkins, who had personally been terminated for theft, came to see Johnston. Perkins told Johnston that the Christmas *852 gifts were not stolen by Lawrence Landry, the young man Plummer was investigating, but by two security officers. Perkins also told Johnston that if you knew the light officer in the security booth at the employee's entrance, you could leave the hotel with anything you wanted. Perkins told Johnston that another employee, Gerald Perry, also observed the thefts.
Johnston requested Perkins give a written statement. Perkins asked first to speak to assistant personnel director, Percy Ewell, because he was black. After speaking to Ewell, Perkins agreed to give the statement. Johnston was directed by legal counsel to obtain a notarized statement from both Perkins and Gerald Perry.
Johnston then contacted Jim Moyer, vice president of loss prevention in Washington D.C. It was subsequently decided at a meeting that took place shortly thereafter that Plummer would be advised of Perkins' statement and his advice sought as to how to proceed. Upon hearing of Perkins accusations, Plummer stated that he was not surprised because he had been suspicious of the two security officers. Moyer indicated his disappointment of Plummer.
The decision was then made to polygraph the entire security department. Plummer was included because it was hotel policy to also polygraph the department manager. Other non-security employees were also polygraphed. Those that failed the test would be terminated. Johnston explained that the decision not to polygraph James Johnson, the manager on duty (MOD) the night of the Christmas gift thefts, was because he was not a department manager. The MOD's job was to primarily oversee the hotel, especially guest relations. He stated, however, that Johnson was eventually polygraphed.
Mike Johnston further testified that Plummer came to see him to discuss the various options that he was presented. He stated he reviewed each option, explaining the "pluses and minuses". He described Plummer as upset. He testified he encouraged him about a possible transfer to Texas where Mr. Benedetto "could make things happen". He stated that Plummer asked questions about such things as vacation and profit sharing if he resigned.
After receiving Plummer's letter of resignation, Johnston discussed keeping Plummer on the payroll so that he would keep medical benefits as long as possible. It was also decided to keep Plummer on the payroll an additional two weeks in order for him to receive an extra 5% in profit sharing. Johnston testified that Plummer told him he didn't want to relocate. Plummer did not complain about the options. Plummer told Johnston that he was told that demoting to the number two position would not be in his or the hotel's best interest because it is difficult to step down and remain at the same hotel.
ANGELA PERKINS (Fonner Employee)
Angela Perkins testified that she had been employed at the Marriott in the housekeeping department. She was fired in 1986 for stealing. Perkins contacted Johnston because she did not want Lawrence Landry blamed for the Christmas thefts because she knew who had stolen them. Perkins described a systematic theft ring involving security officer Janis Garrison and other employees. If an employee wanted to steal, they called the security booth and informed Janis Garrison, the security officer at the employee's entrance. Garrison would then allow them to leave with the merchandise.
Perkins stated she observed the Christmas gifts in the security office with Garrison, but thought they belonged to Garrison.
Perkins stated she gave a written statement. She was not promised anything in exchange for her statement and was not helped in preparing the statement.
JAMES MOYER (Director of Loss Prevention)
James Moyer, vice president of Human Resources, testified that in 1986 he was Director of Loss Prevention.
He was informed of the Christmas gift thefts and that a number of people were implicated, several in security. He asked if Plummer was involved, but was told that no one knew if he was or not.
*853 Moyer stated there was concern before this incident that Plummer was not as proactive as he should be. He needed to be more prevention oriented. He stated that all areas of loss prevention were changing from apprehension to prevention.
According to Moyer Plummer was having difficulty changing his approach. Bruce Gorelick expressed concern about this problem.
Moyer testified that Plummer was polygraphed with the rest of security because this was hotel policy. Moyer was glad that Plummer passed but expressed concern that so many security officers failed the test. When Plummer was told who was implicated, he stated that he was not surprised because he was suspicious of the night shift. According to Moyer, even though Plummer was suspicious, he took no "initiative to do anything about it." Moyer expressed his concern and disappointment to Plummer and told him that the situation was unacceptable. He told Plummer that the senior managers would be consulted and a decision would be made.
Moyer testified that the senior managers voiced two concerns in arriving at their decision. First, they needed to restore the credibility of the security department. Second, they were concerned in "taking care" of Plummer, so that he could remain employed. They wanted to find a hotel where Plummer icould function well because of his years with the Marriott chain. These concerns were the reasons for the options. After Plummer's resignation, he was replaced by an Hispanic male.
LUCIO BENEDETTO (Regional Vice-President)
Lucio Benedetto, Southern Regional vicepresident, testified that he has known Plummer since 1972 or 1973. While Benedetto was general manager of the New Orleans Marriott in 1980, he described Plummer as doing "a good job" and of being trustworthy and a "good performer."
In March of 1986, Benedetto came to the New Orleans property for the general manager's changeover. At that time he was aware of the theft problems being investigated. While in New Orleans, on March 20, 1986, Benedetto testified that he was asked to review the options before they were presented to Plummer because of his longtime relationship with him. Benedetto was made aware that large amounts of property had been stolen and that members of the security department were implicated. It was clear that the credibility of the security department had to be re-established. The reason for the options was to give Plummer a choice in order to keep him as an employee. No option was encouraged or discouraged and it was never contemplated to terminate Plummer.
Benedetto testified that at the meeting with Plummer, each option was explained. Plummer was told not to worry, that everything would be done to take care of him. Benedetto directed Plummer to take one or two weeks off with pay to consider his decision. He suggested that Plummer and his wife go to Point Clear, Alabama or Houston or some other Marriott resort in Benedetto's region at Marriott's expense. Benedetto stated that Plummer appeared relieved and said "Mr. B, I thank you very much. It's great to have you here. I know you're gonna do that for me, et cetera, et cetera." He was smiling and relieved because he thought he was going to be terminated.
Benedetto testified that there was no discussion of available transfer positions because no decision had been made by Plummer as to which he would exercise. Several weeks later Benedetto stated he was informed that Plummer resigned. He stated he was surprised, but respected his decision. He approved extra time on the payroll so that Plummer would fully vest in the profitsharing program. He explained that not everyone leaving Marriott's employ receives an option package such as offered Plummer.
MARSHALL P. PLUMMER, III
Plummer testified that he applied for employment with Marriott in June of 1972. He was hired as a security officer. Within ten months he was promoted to shift supervisor. Within a year and a half he was promoted to chief of security. Within three years he was promoted to Director of Security. He was chosen for this position over one other chief of security, a white male. Plummer testified *854 that he received yearly increases and was satisfied with his salary and benefits.
He described an evaluation meeting with Gorelick in 1985 during which he was told that his rating would be reduced, but that would not effect his annual increase in pay. He stated that he told Gorelick that he didn't mind the reduced rating and that it didn't concern him.
Plummer referred to the new general manager, John Ceriale, as a "dictator". He described him as "the king of the castle, king of the hill." He stated that Ceriale did not like being confronted by employees. He briefly described a confrontation with Ceriale over some money the hotel was holding that belonged to him, but he could not remember the details. He felt Ceriale didn't like him especially following an incident in the French Quarter which involved a black male. While jogging, Mrs. Ceriale had been verbally accosted by this black male. Plummer was asked to accompany the Ceriales the following day. Mr. Ceriale pointed out the black male, who appeared to be a homeless street person. Plummer stated that he recognized the man from the St. Bernard housing project where he lived as a child. He approached the man, explained the problem, and the man tried to apologize. Ceriale refused the apology and made a threatening remark to the man. Plummer felt that Ceriale was upset because the man was black and he was black. He stated that he believed Ceriale wanted him (Plummer) to do bodily harm to the man and when he did not, Ceriale became angry.
Plummer also described two incidents where he felt he was singled out. One involved a reduction in management dining privileges and the other involved the moving of his office to the back dock. He believed he was denied the dining privilege because only he and the executive committee, which was all white, had these privileges. He admitted that he was asked to give up his office on the mezzanine level because personnel needed additional space.
When the hotel Christmas gifts were stolen from the personnel office he began an investigation which focused on a young housekeeping employee named Lawrence Landry. Eventually the investigation reached a stalemate. Landry vehemently denied he stole the gifts and Plummer could find no proof to the contrary. Plummer then requested that Bruce Gorelick allow him to polygraph certain individuals to use as an investigative tool. Plummer testified that he was shocked when Gorelick denied his request because Gorelick seemed so adamant about catching the person responsible. He was also shocked because he had never been refused in the past after explaining the situation and justifying the need for the test.
Later it was discovered, through former employee Angela Perkins, that the gifts were stolen by Janis Garrison and another security officer. When Plummer was informed by management that polygraph tests would be given to all security personnel, including himself, he stated that he had no problem with that decision. Employees of other departments were also given the test but he was not informed of this initially because he was not head of those departments.
Several days after he took the polygraph test, Plummer was summoned to a meeting with upper management.[8] At this meeting he was presented with several options. Mr. Benedetto told Plummer that the options were being presented because "you're a longterm employee. You've been here 14 years. That's why you're receiving these options." No one option was encouraged or discouraged. Plummer testified that he felt he received fair treatment and that management was honest and sincere in giving him the options. He admitted that he felt some disciplinary action would be taken. Plummer admitted that he always wanted to transfer to another hotel and that his wife liked the idea as well.
Plummer testified that when he went to see Gorelick to discuss the options, Gorelick told him there was nothing available either at another hotel or another department. When asked about taking the number two security position, he said that Gorelick told him the new director stated he wouldn't be able to *855 work with him. He also testified that Gorelick told him the number two position would jjijbe on the midnight shift and would be hourly. He felt that he was being "constructively terminated", so he resigned. He stated he felt they were "subconsciously" forcing him to resign.
On cross-examination, Plummer admitted that even though he had suspicions about Janis Garrison even before the Christmas gift theft, he did not investigate her by putting surveillance on the security booth. He admitted that the hotel began to experience a large number of thefts in 1985 and that hotel security was his responsibility. He testified that the thefts did place a cloud over the security department and he felt that some kind of disciplinary action would be taken against him. He admitted that he was given time off to consider the options. He also admitted that Gorelick may have said that there was nothing available at another hotel at that time and that he didn't ask him if anything would be available anytime soon.
He described his relationship with Gorelick as good. He described Benedetto as a sincere, sympathetic, honest and a straight shooter.
On re-direct examination, Plummer testified that he did not use Marriott's Guarantee of Fair Treatment procedure if he was dissatisfied because he didn't believe he had any option but to resign. This procedure would have guaranteed Plummer a right to bring his complaints to the divisional vice president who was Lucio Benedetto, Plummer's longtime friend.
EMELDA PLUMMER (Plaintiffs Wife)
Emelda Plummer, plaintiffs wife, testified she and her husband were very satisfied with his salary and benefits and the fact that he had moved up in the hotel. She stated that she and her husband often discussed the possibility of a transfer in order to continue to advance with the Marriott. She stated that neither she nor plaintiff had any problems with the idea of a transfer.
Mrs. Plummer testified that approximately a year and one half before he resigned, plaintiff seemed worried about his job and often would go back to the hotel at night. She stated that after plaintiff received the options, they discussed each and decided the best one was to accept the demotion to the number two position in security. Plaintiff never contemplated resigning. Only the demotion or possibly a transfer was discussed. When plaintiff returned following his meeting with Mr. Gorelick, Mrs. Plummer stated that he informed her that he had resigned because there were no place to transfer and that he felt they did not want him to stay. She testified that plaintiff felt he did not want to work for anyone any longer. After leaving the Marriott, plaintiff tried several businesses of his own but none succeeded.
On cross-examination, Mrs. Plummer stated that as far as she knew none of the options were ever withdrawn. That all plaintiff relayed to her was that he was told that there were no openings at other hotels for him to transfer at that time. She admitted that plaintiff never told her that management specifically stated they didn't want him, but that this was "the impression he got from them." With respect to option number two, he told her that Mr. Gorelick didn't think he would be able to work under someone else.
JAMES E. JOHNSON (Night Manager on Duty)
James Johnson testified that he was employed by Marriott from May, 1978 to August or September, 1989. In 1984/85, he was the night manager or manager on duty. His duties consisted of overseeing the hotel and handling guest problems. His duties did not consist of control or jurisdiction of individual departments. He stated the security department officers acted as his "right hand" if anything occurred such as a fire or medical emergency because they had first aid training.
In his capacity as manager on duty, Johnson stated he frequently saw Plummer, but did not describe their working relationship as close.
He recalled Richard Johnson, a security officer, contacting him regarding time violations which he reported to the then resident manager, Pat Lupshaw. He wrote nightly reports consisting of things such as the quality and quantity of the food, inspection of *856 floors and other incidents or problems during the night. He recalled reporting problems of tardiness with some security personnel. He felt that the security department was deficient in its operation. He also felt that housekeeping, utility, catering, and the front desk were also deficient. As a result of his problems with security, Johnson stated he had a meeting with Plummer, the resident manager, Gorelick, and Ashton Lyons, security officer. The problems with the time cards were discussed. The result was the matter was dismissed. There was no finding that there was stealing of timeone employee clocking in another who was not on the premises. Following this meeting, he had another meeting with Plummer and also with housekeeping to see if the various problems could be worked out. He testified that he questioned some of Plummer's decisions, but did not criticize him because Plummer was above him in grade. He stated that he only discussed problems that he observed.
Johnson testified that at that time, the hotel was experiencing a series of thefts which seemed to occur every night. He remembered some Christmas gifts were stolen from the personnel office. He stated that is all he was told. He denied having a key to the personnel office. He stated he was requested to take a polygraph test, which he did. He recalled two other times he was polygraphed. Once was for employment, and the other was when he was audit manager and $1,000.00 was missing. This second polygraph was administered by Plummer. He testified that no one told him that Plummer was insisting that he be polygraphed in reference to the Christmas thefts. He stated he did not speak to any officials before taking the test and had no reason to suspect Plummer was involved in the thefts. He did testify that he thought Plummer favored certain employees over others.
Johnson stated that he did, on occasion, take pens and pencils from the hotel but didn't consider that stealing. He was not involved in any management decisions regarding Plummer and was not told of his resignation by management. He found out Plummer resigned by talking to other employees.
IV. ANALYSIS:
a) Constructive Discharge
We find that the jury was clearly wrong in its factual conclusion that Plummer was "constructively discharged." The evidence is overwhelming that four options were given to Plummer and that he chose to resign. Despite his contention that he was "guided" into choosing resignation, Plummer's own testimony suggests only a subjective impression of being forced to resign. Plummer admits that he was presented various options, but got the impression that he had no option other than resignation because (1) there was no specific transfer location given to him when he returned to see Gorelick; (2) the Marriott management felt it would be difficult for him to work in the number 2 spot in security; and (3) there was no set determinative spot within other departments at the New Orleans hotel. The jury's adoption of Plummer's impression of constructive termination is not reasonable in light of the evidence presented.
When Plummer returned to see Gorelick about his decision, none of the options had been withdrawn. In fact, on that occasion Plummer never asked either Gorelick or Johnston to investigate other openings. Plummer admits there was a reasonable concern over people within the New Orleans hotel believing that he was involved in the thefts and that there was concern on the part of management that he might not be happy working as a subordinate to a new director, however that option was still viable. Plummer's close relationship with the regional vice-president, Benedetto, strongly suggests that Plummer's other alternatives were also always viable and any one of them would have been pursued by management if Plummer so desired. Plummer admits he never pursued any other option but resignation. The evidence supports the conclusion that Plummer voluntarily chose resignation, and the jury's contrary conclusion, in our opinion, is unreasonable and clearly wrong. The only evidence supporting that contrary conclusion is Plummer's own subjective impression of forced resignation.
*857 b) Racial Discrimination
However, assuming arguendo that Plummer was in fact discharged, constructively or directly, we hold, as a matter of law, that there was insufficient evidence to support a finding that racial discrimination was the cause of his termination.
Although we are not favored with specified factual findings by the jury which led to their racial discrimination conclusion, Plummer argues that the following occurrences, which allegedly started under the regime of Ceriale and Gorelick, support and prove that conclusion.
1) His yearly evaluations declined;
2) A strained relationship existed between himself and John Ceriale which intensified after an incident in the French Quarter which involved a black male;
3) The relocation of Plummer's office to the rear dock and curtailment of his dining privileges;
4) Mike Johnston's refusal to allow the black security officers use of the bathroom near the personnel office;
5) Gorelick's refusal to allow Plummer to polygraph certain individuals in his investigation of the Christmas gift thefts;
6) The decision to polygraph Plummer, but not James Johnson, the white manager on duty the night of the thefts;
7) Marriott's failure to find a suitable hotel or department for Plummer to transfer pursuant to the options presented to him, thus forcing him to resign.
For the following reasons, we disagree. Analyzing each occurrence in accordance with a "manifest error" or "clearly wrong" standard, no reasonable inference of racial discrimination can be concluded.
The evaluation forms filed in evidence show that Plummer's ratings and overall evaluations remained consistent before and after Gorelick and Ceriale's arrival in 1985-86. Plummer's need and strength areas were always basically the same. Two factors must be considered. First, the actual forms themselves changed sometime in 1984, and, thereafter, as Gorelick testified, you must compare "apples with apples." Second, Plummer's evaluations are the subjective impressions of whoever the evaluator was at the time. Any conclusion of racial discrimination to be drawn by comparing Plummer's evaluations before and after 1985 is pure speculation.
Plummer argues that he was forced to work off the Marriott premises when asked to accompany Ceriale and his wife on the jogging incident and that Ceriale was angry because he didn't take further action against the person responsible for verbal abuse. However, Plummer's "off premises" complaint is more in the nature of a labor dispute regarding working conditions, rather than proof of racial discrimination. Plummer's belief about Ceriale's feeling are his own subjective impressions.
Plummer's appreciation of the motivation behind the bathroom and dining incidents is equally without support. When Mike Johnston requested the security officers not use the bathroom near the personnel office, it was not because they were black, but because they were hanging around the office several times per day. Johnson felt this was not proper. All security officers were the subject of Johnson's request, including the one white officer.
The curtailment of dining privileges was directed to all management and not just to Plummer. The reason was an economic down turn coupled with excessive use of the privilege. Once again, Plummer's complaint is founded in his subjective belief that it was directed toward him, but with no objective corroborating evidence.
Plummer's testimony was to the effect that he was shocked that Gorelick would not allow him to polygraph certain individuals. No evidence was presented that Gorelick's motivation was one of race. Gorelick explained that he denied the request because, at that point in the investigation, the extent of employee involvement was not yet known. This explanation is not unreasonable and is supported by Plummer's own testimony that he had no specific leads. The later decision to polygraph Plummer, along with the entire security department, was made after receiving the specific information in Angela Perkins' sworn statement. At that point in time, *858 the security department had been implicated in the theft ring. The initial decision not to polygraph James Johnson, the manager on duty the night of the theft, was not because he was white, but because he was not a department manager. Johnson was, in fact, subsequently polygraphed.
Plummer's assertion that he was effectively shut out of any single option is also not supported by the record. He testified that the options were fair and that he believed management was honest and sincere in presenting them. He also admitted that none of the options were ever withdrawn. During his unannounced visits to Gorelick and Johnston, Plummer never asked either man to investigate future openings. Furthermore, he never pursued any further grievance procedure if he felt race was a motivating factor.
Gorelick and Johnston stated that they went over the options with Plummer as to their pros and cons. They advised Plummer against remaining at the New Orleans hotel because of the negative impact it would have both on the hotel and on Plummer. In his testimony, Plummer admitted that they were concerned that people would believe he had been involved in the thefts. He also admitted that they felt that he might not be happy working as a subordinate to the new director. As we previously noted, the record does not support a finding that he was forced to choose the option to resign.
CONCLUSION:
Despite Plummer's subjective impressions that the Marriott no longer wanted him and that he was forced to resign because of his race, the record evidence simply does not support that conclusion. Marriott rebutted any prima facie presumption of discrimination by articulating and proving a reasonable non-discriminatory reason for the actions they undertook.
The evidence is overwhelming that the security department, under Plummer's immediate control, was involved in a serious theft ring that resulted in numerous (five of twelve) dismissals in that department. No other reasonable conclusion can be reached except that the integrity of the entire Marriott New Orleans security department had been compromised. It is undisputed that the thefts involved several security officers. Even if Plummer had actually been terminated, the evidence would have supported that decision by Marriott. Each occurrence cited by Plummer to support his "impression" of racial discrimination, is insufficient to support that impression as a legal conclusion.
Accordingly we reverse the trial court judgment and dismiss plaintiffs suit with prejudice.
REVERSED AND RENDERED.
NOTES
[1] The package included retirement, vacation and sick leave pay. Plummer was also permitted to stay on the payroll, with medical benefits, an additional period of time (approximately thirty days) in order to obtain increased pension benefits.
[2] Jury Interrogatory # 1.
[3] Jury Interrogatory #2.
[4] Wc cite the statute as amended in 1993. The pre-l 993 version is almost identical.
[5] 42 U.S.C. Sec. 2000c-2(a) provides:
"It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." (emphasis added)
[6] The language of McDonnell Douglas, does not contain the exact verbiage as cited by the court in St. Mary's Honor Center. However, as applied to the facts of that case, the Supreme Court approved the district court's recitation of the above language as given by the district court.
[7] The title designation of the Marriott employees who testified arc those held during 1985-86 shortly before Plummet's resignation.
[8] Plummer took the polygraph on March 17, 1986. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1675485/ | 629 So. 2d 516 (1993)
John J. DOYLE, Jr.
v.
TITAN INDEMNITY COMPANY.
No. 93-CA-542.
Court of Appeal of Louisiana, Fifth Circuit.
December 15, 1993.
*517 Craig J. Cimo, Gretna, for plaintiff/appellant John J. Doyle, Jr.
Dermot S. McGlinchey, Debra F. Cottrell, Margaret Diamond, McGlinchey, Stafford & Lang, New Orleans, for defendant/appellee, Titan Indem. Co.
Ronald L. Faia, Jr., New Orleans, for defendant/appellee, Allstate Ins. Co.
Before BOWES and CANNELLA, JJ., and JOHN C. BOUTALL, J. Pro Tem.
BOWES, Judge.
Plaintiff, John J. Doyle, Jr. (hereinafter "Doyle"), appeals a judgment of the district court granting summary judgment in favor of the defendant Titan Indemnity Company (hereinafter "Titan"). We reverse and remand.
PROCEDURAL HISTORY
Doyle is the Police Chief of the City of Harahan and on January 19, 1990 was operating a vehicle allocated to the police department and owned by the City of Harahan. On that date he was involved in an accident with the alleged tortfeasor, Christopher Gaines, and suffered injuries. Doyle sued Titan as the uninsured/underinsured motorist carrier of Harahan, alleging that his injuries and resulting damages exceeded the policy limits of Gaines' insurance. Titan answered, admitting that it provided liability insurance but denying that it provided uninsured/underinsured coverage. Titan then filed a motion for summary judgment maintaining that Harahan executed a valid waiver of UM coverage and, therefore, that plaintiff was barred from recovery against it.
*518 Each party submitted memoranda and exhibits, and a hearing was had on the motion.
Following the hearing, summary judgment was granted in favor of Titan.
FACTS
The trial court had before it a copy of City of Harahan Ordinance Number 984, which evidences that "... the Mayor shall sign all contracts involving the City of Harahan ..."; a copy of the minutes of the Mayor and Board of Alderman dated December 7, 1989; the insurance policies, and declarations sheets, including a form for rejection of UM coverage; "Renewal Proposal" written by Michael Martin, the agent for the Gaynell J. Martin Insurance Agency; and the memoranda of counsel, including an affidavit sworn by Doyle.
The minutes dated December 7, 1989, contain the following:
Mr. Mike Martin from Gaynel Martin Insurance Agency gave out brochures to council members and explained. He advised there will be a reduction in premiums. There was some discussion regarding uninsured motorists clauses, deductibles, etc. He advised that the net reduction on the insurance premiums is $2,148.00. The renewal date is January 1, 1990. A motion to accept the proposal presented in the amount of $81,061.00 came from Alderman Walker, seconded by Alderman Barocco.
Alderman Anzelmo stated that he is in favor of this motion, but will abstain from voting since his firm provides legal counsel to the insurance company involved.
A report given by Chief Doyle at the meeting evidences the fact that he was present. In the affidavit submitted in connection with the motion for summary judgment, Doyle declared that at no time during this meeting did Mr. Martin advise the Board "or anyone else for that matter, of the option of the City of Harahan to select alternate uninsured motorists limits different from the liability limits of the insurance contract." No countervailing affidavit was filed.
The written proposal submitted by Martin evidences a proposed $1,000,000 single limit/occasion coverage on the insurable vehicles and contains the following provision: "Excludes Uninsured Motorist Liab [sic]."
No other reference to UM coverage was contained in the proposal.
Attached to the policy was a form titled "Rejection Of Uninsured Motorists Coverage On Selection Of Limit Of Liability." The form had a double "X" typed on the box which states that the "undersigned insured... agrees that the Uninsured Motorists Coverage afforded in the policy is hereby deleted." The form contains the signature of Carlos Ferrara, the Mayor of Harahan.
ASSIGNMENT OF ERROR
Doyle alleges that the trial court committed manifest error in granting summary judgment since there are genuine issues of material fact which remain unresolved. We agree.
ANALYSIS
The evidence in the record shows that while the Board and Mayor were presented with an insurance proposal, such proposal had already deleted UM coverage where it states "Excludes Uninsured Motorist Liab [sic]," supra. Further, although the minutes show that UM coverage was discussed, there is no indication as to whether the package proposal offered by Titan and accepted by the Board ever included UM coverage; or whether the Board ever discussed such inclusion and subsequently rejected it. That is, did Titan offer a selection of UM benefits to the Board? The uncontested affidavit of Doyle tends to prove that any such discussion, or determination to choose rejection, did not take place.
Further, we take notice of the appearance of the purported rejection, which has the double "X" typed in deleting UM coverage. A comparison of earlier rejection forms attached to earlier policies indicates that that box was filled in, at least on other forms, absent a signature by the insuredin other words, on its face, the form appears to have been completed prior to its submission to the insured for signature. This in, and of itself, is not dispositive of the entire question, but is *519 certainly noteworthy when considered with the lack of any other evidence that an actual option was given to the Board and the Mayor. With regard to the rejection form itself, we note that no evidence was adduced verifying the signature on that form as that of Mayor Ferrara, and no evidence as to who filled in that typed box.
An option to reject UM coverage by the insured is required by the statute itself, as well as by myriad jurisprudence. See, e.g., Jones v. King, 549 So. 2d 350 (La.App. 5 Cir.1989); Robinson v. Moore, 580 So. 2d 1109 (La.App. 4 Cir.1991); Martin v. Clanton, 626 So. 2d 909 (La.App. 5 Cir.1993).
In Henson v. Safeco Ins. Companies, 585 So. 2d 534 (La.1991), our Supreme Court discussed the efficacy of a pre-completed form:
The insurer's analysis is faulty because insurers in Louisiana are required to include UM coverage unless specifically rejected by the insured. It is the rejection of UM coverage, and not the acceptance, that must be the affirmative act of the insured. Here, the insurer, by presenting a completed application form to Henson, attempted to set up an automatic rejection of UM coverage and thus require Henson to affirmatively change the form in order to obtain UM coverage. See Duhe v. Maryland Casualty Co., 434 So. 2d 1193 (La. App. 1st Cir.1983) (there was no selection of lower limits by the insured when the insurer attempted unilaterally to provide lower limits). Insofar as this record shows, Henson's only affirmative act was to sign an application for insurance presented to him in response to his request for complete coverage.
[Emphasis supplied].
In Young v. Shelter Ins. Co., 604 So. 2d 199 (La.App. 2 Cir.1992), the court found, and we agree, that:
... Henson dictates that it is the insurer's burden to demonstrate that any exceptions to UM coverage shown on the application reflect the insured's informed affirmative choice, rather than the insurer's attempt to force the insured to alter standard choices made for him by the insurer. See also, Duhe v. Maryland Casualty Co., 434 So. 2d 1193 (La.App. 1st Cir.1983).
The court found in Henson, supra, that a positive and unambiguous action was required on the part of the insured (which action was not evident in that case):
Accordingly, there was no express, affirmative act on the part of the insured which clearly, unmistakably and unambiguously rejected UM coverage as required by La. Rev.Stat. 22:1406D(1)(a). We therefore conclude that the insurer's proof of Henson's signing a general application for insurance, without either marking the inconspicuous rejection box himself or signing or initializing the mark by the insurer's agent, was insufficient to establish a valid rejection of UM coverage. Absent a valid rejection by the insured, UM coverage is specifically read into all automobile liability policies in the amount provided for bodily injury coverage.
[Emphasis supplied].
The insurer must place the insured in a position to make an informed rejection of UM coverage. Tugwell v. State Farm Ins. Co., 609 So. 2d 195 (La.1992).
Implicit in the statute's requirement that the insurer make available to the insured the option of selecting lower limits is the idea that the insured be made aware of that option. Uhrich's [Uhrich v. Nat'l Fire Ins. Co., 569 So. 2d 1062 (La.App. 3 Cir.1990)] requirement that the insured be given the option of selecting lower limits would be empty protection indeed if the insurer were not also required to make sure the insured is informed of such an option. An insured cannot exercise an option he does not know exists. This can be accomplished in several ways. For example, the insurer can require the insured to acknowledge in writing he has been informed of the options; or, the application itself can be set up in such a way through the use of blanks and boxes that it is apparent to the reasonable person that he has the option of selecting any lower limit he chooses.
[Emphasis supplied].
Tugwell, supra.
*520 The unanswered question which concerns us, and which is not laid to rest by the record before us, is whether or not Titan ever offered to provide UM coverage in its package. While it is evident that the Board and the Mayor are aware of the existence of UM coverage, it is not clear whether Titan, in proposing to insure the City, made UM coverage a "meaningful" choice. If, for example, the "discussion" before the Board consisted of Mr. Martin informing the Board that it would not or simply did not provide UM coverage in its insurance package, such a fact, combined with what appears to be a pre-completed form, makes it very questionable as to whether any viable option to accept or reject UM coverage was given, and therefore, whether the rejection was valid. Absent a valid rejection, UM coverage is specifically read into the liability policy. Henson, supra.
The insured must be allowed an opportunity to make an "informed and meaningful" selection of being covered by UM coverage or not. Tugwell, supra. Id.
It is impossible to tell, from the present record, whether the Board was afforded both an informed and meaningful choice where there is no evidence that anything other than a pre-packaged proposal, deleting UM coverage, was presented to be voted upon. We hold that the existence of such an option is a genuine question of material fact which precludes summary judgment.
Additionally, Titan did not prove the genuineness of Mayor Ferrara's signature, nor that he (or some other legal representative of Harahan) filled in the rejection box, and, therefore, exercised any options which may have existed.
Defendant cites us to LSA-R.S. 22:1406(D)(1)(a)(i) which states that UM coverage need not be provided to a renewal, reinstatement, or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued by the same insurer or its affiliates. Of the other two signed rejections in the record for 1986 and 1987, the 1986 document evidences rejection of UM with "Illinois Insurance Exchange," which company has not been proven to be an affiliate of Titan. The 1987 rejection was signed by someone other than Mayor Ferrara; the entire question of the authority of that signatory and therefore the effectiveness of that signature is an open question (important insofar as it applies to this limited issue of renewal policies). Furthermore, the declarations sheets on both these policies do not evidence that the vehicles and persons insured then are the vehicles and persons insured in 1990. The addition of another insured and/or a new vehicle cannot be made to a policy and still have the policy considered a renewal or substitute one. See Tully v. Liberty Mutual Fire Ins. Co., 516 So. 2d 435 (La.App. 1 Cir.1987); Thibodeaux v. Champion Ins. Co., 614 So. 2d 232 (La.App. 3 Cir. 1993), wherein it was held that such additions have the effect of a new contract, and a separate UM waiver is required.
Therefore, the question of whether or not this is a "renewal" policy is also unresolved by the record before us.
The jurisprudence regarding summary judgment is clear and well established:
Summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. The movant for the summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact and any doubt as to the existence of such issue of material fact is to be resolved against granting the motion. To satisfy his burden, the movant must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact. The papers supporting the position of the moving party are to be closely scrutinized while opposing papers are to be indulgently treated, in determining whether the mover has met his burden. Summary judgment may not be granted even if the trial court has grave doubts as to a party's ability to establish dispute facts.
*521 Young, supra. [Citations omitted].
Titan did not meet its burden of proof in the present case, and therefore summary judgment must fail. On the record before us, it was error for the trial court to grant summary judgment in favor of Titan.
DECREE
For the foregoing reasons, the judgment in favor of appellee, Titan, is reversed, and the matter remanded for further proceedings. Costs of this appeal are taxed against Titan, appellee.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743105/ | 937 S.W.2d 148 (1997)
PREFERRED RISK MUTUAL INSURANCE COMPANY, Appellant,
v.
Traci Louise WATSON, Individually and as Next Friend for Aaron Watson, a Minor Child; Jami Manning and Mark W. Manning, Individually and as Next Friend for Alex Manning, a Minor Child; Nathan Bryan, Individually and as Next Friend for Jerry Matthew Bryan, a Minor Child; and Grace Temple Baptist Church d/b/a Grace Temple Child Development Center, Appellees.
No. 2-95-188-CV.
Court of Appeals of Texas, Fort Worth.
January 9, 1997.
Rehearing Overruled February 13, 1997.
E.J. Wohlt, Jr., Houston, for Appellant.
J. Jeffrey Springer, R. William Wood, Wood, Springer & Lyle, P.C., C. Jane Thacker, Denton, for Appellees.
Before CAYCE, C.J., and LIVINGSTON and BRIGHAM, JJ.
OPINION ON REHEARING
CAYCE, Chief Justice.
Appellant's motion for rehearing is granted. Our opinion and judgment of August 30, 1996 are withdrawn, and the following substituted therefor.
Three children were allegedly molested by an employee of Grace Temple Baptist Church's day care center, prompting two separate lawsuits filed by the children and their parents. Grace Temple and its insurance carrier, appellant Preferred Risk Mutual Insurance Company, entered into a settlement agreement with the children that provided for a lump sum payment by Preferred of $100,000 to be allocated among the children on a pro rata basis. The settlement *149 also provided for the deposit of another $100,000 in escrow pending the outcome of a declaratory judgment action filed by Preferred to determine the proper definition of "occurrence" in the sexual misconduct liability coverage endorsement to Grace Temple's general liability policy. The sexual misconduct endorsement has a limitation of $100,000 per "occurrence"[1] and a $300,000 limit per policy period for claims involving sexual misconduct. Preferred took the position that the children's claims collectively constitute only a single "occurrence." The children countersued alleging that each child's claim constitutes a separate "occurrence." The case proceeded to trial on an agreed statement of facts on March 16, 1995. On May 12, the trial court rendered judgment for the children and against Preferred. Preferred then perfected this appeal.
In three points of error, Preferred contends that the trial court erred in declaring that the policy provided a separate $100,000 "occurrence" limit for each child allegedly molested by the Grace Temple employee. Preferred argues that all of the employee's alleged acts of sexual misconduct, or Grace Temple's alleged breaches of duty contributing to those acts, collectively constitute a single "occurrence."
The Commercial General Liability ("CGL") policy in this case specifically excluded "bodily injury" and "personal injury" caused by abuse or molestation under a policy endorsement entitled "Abuse or Molestation Exclusion." The policy, however, included another endorsement entitled "Sexual Misconduct Liability Coverage Form." This endorsement provides, in pertinent part, as follows:
1. INSURING AGREEMENT
We agree to cover your legal liability for damages because of bodily injury ... to any person arising out of sexual misconduct which occurs during the policy period....
....
2. LIMITS OF LIABILITY
Our obligation to pay damages for each occurrence is the Each Occurrence limit shown on the Endorsement Schedules in the Declarations [$100,000 each occurrence/$300,000 total damages during policy period]. Our total obligation for damages covered by this Coverage Form during any policy period is the Total Damages During Policy Period limit shown on the Endorsement Schedules in the Declarations regardless of the number of claims or occurrences, or number of insureds.
All acts of sexual misconduct by one person, or two or more persons acting together, or any breach of duty causing or contributing to such acts will be considered one occurrence in determining our liability under this section. [Emphasis supplied.]
Neither party has argued that the definition of "occurrence" contained in the sexual misconduct endorsement is ambiguous.
The interpretation of insurance contracts is governed by the same rules of construction applicable to other contracts. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). When construing a contract, courts must strive to give effect to the written expressions of the party's intent. Id. To do so, they must read all parts of the contract together, giving controlling effect to specific provisions over general provisions. Id. at 133-34. If an insurance contract is worded so that it can be given only one reasonable construction, it will be enforced as written. National Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). However, if its terms are susceptible to more than one reasonable interpretation, the uncertainty must be resolved by adopting the construction that favors the insured. Id. This is true even if the construction urged by the insurer is more reasonable or is a more accurate reflection of the parties' intent. Id.
*150 Applying these rules of construction to this case, we find that the definition of "occurrence" in the sexual misconduct endorsement clearly and unambiguously means that a single "occurrence" is "[a]ll acts" of sexual molestation by either "one person, or two or more persons acting together, or any breach of duty causing or contributing to such acts." [Emphasis supplied.] This is the only reasonable construction that can be given to the endorsement; therefore, we must enforce it as it is written. In so doing, we hold that "all" of the Grace Temple employee's alleged acts of sexual misconduct and "any" alleged breach of duty that may have contributed to those acts, collectively constitute a single "occurrence" under the policy in question.
Appellees argue that each child is entitled to a separate "occurrence" limit and urge that we follow the Fifth Circuit's reasoning in Society of Roman Catholic Church v. Interstate Fire & Casualty Co., 26 F.3d 1359 (5th Cir.1994). In that case, two pedophilic priests molested thirty-one children over a period of seven years. Preferred was one of two primary carriers for the diocese. All of the diocese's insurance policies were "occurrence"-based policies. After settling the molestation claims, the diocese filed a declaratory judgment action for determination of whether Preferred's and the other insurer's general liability policies defined "occurrence" on a per child basis. Upon concluding that the definition of "occurrence" contained in the policies was "malleable" and "uncertain" (and thus subject to more than one interpretation), the Fifth Circuit interpreted the policy in favor of the insured holding that the molestation of each child is a separate "occurrence." Id. at 1364-65.
Society is inapposite to this case. The court in Society construed a general liability policy that did not exclude sexual misconduct and that contained an entirely different definition of "occurrence" than the one at issue here. The policy in Society defined "occurrence" as:
[A]n accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally result in personal injury, or damage to property during the policy period. All such exposure to substantially the same general conditions existing at or emanating from one location shall be deemed one occurrence.
Id. at 1363-64. This definition is similar to the definition of "occurrence" contained in the CGL policy in this case, which defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." However, unlike the policy in Society, the CGL policy expressly excludes sexual misconduct claims from its coverage and, therefore, from the application of the CGL terms to those claims. Instead, the policy includes a "sexual misconduct" endorsement to cover those claims. This endorsement contains a distinct definition of "occurrence" that both parties agree is clear and unambiguous.
Because sexual misconduct claims are specifically excluded from the CGL policy, we find no conflict between the endorsement's definition of "occurrence" and the CGL policy's definition of "occurrence." Consequently, in order to give effect to the specific definition of "occurrence" in the sexual misconduct endorsement, we must construe it according to the written intention of the parties, i.e. "all" alleged acts of sexual misconduct and "any" breach of duty contributing to such acts constitute a single "occurrence."[2] Any other interpretation would render the endorsement's definition of "occurrence" meaningless.
We sustain Preferred's points of error and reverse and render judgment that appellees take nothing.
NOTES
[1] An "occurrence"-based policy caps the limits of coverage on a per occurrence basis. Under such a policy, it is the date of the occurrence, and not the date of the claim, that determines coverage. When bodily injury results from an occurrence during a policy period, coverage is triggered. This coverage extends to all resulting damages, both present and future, emanating from the injury. The policy does not, however, cover bodily injury occurring outside the policy period.
[2] In its supplemental brief, Preferred cites and discusses the unpublished decision of the Tenth Circuit Court of Appeals, Kansas State Bank & Trust v. Midwest Mut. Ins. Co., 1994 WL 192035 (10th Cir.1994). In Kansas State Bank & Trust, the court construed a similar endorsement and policy scheme and affirmed the district court's judgment limiting coverage for the injuries suffered by a single child to the $100,000 "occurrence" limit. Id. at *2-3. The court, however, did not address the question herewhether two or more molested children are entitled to a separate "occurrence" limit. In any event, we remind counsel that unpublished decisions shall not be cited as authority by the court or by counsel. TEX. R. APP. P. 90(i). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1534042/ | 273 B.R. 194 (2002)
In re William S. BROWN and Gayle Brown, Debtors.
Farmpro Services, Inc., Plaintiff-Appellee,
v.
William S. Brown and Gayle Brown, Defendants-Appellants.
WSB Trucking, Defendant.
William S. Brown and Gayle Brown, Plaintiffs-Appellants,
v.
Ag Acceptance Corporation, Defendant-Appellee.
No. 01-6081ND.
United States Bankruptcy Appellate Panel for the Eighth Circuit.
Submitted: February 7, 2002.
Filed: February 15, 2002.
*195 David L. Johnson, Fargo, ND, for appellant.
Roger J. Minch, Fargo, ND, for FarmPro Services, Inc.
Jon R. Brakke, Fargo, ND, for Ag Acceptance Corp.
Before KOGER, Chief Judge, KRESSEL, and DREHER, Bankruptcy Judges.
KRESSEL, Bankruptcy Judge.
The debtors William S. Brown and Gayle Brown have appealed from judgments entered by the bankruptcy court[1] in two different adversary proceedings.
While none of the parties to these appeals has raised the issue of jurisdiction, we, like every federal court, have the duty to examine our own jurisdiction. See, e.g., Krein v. Norris, 250 F.3d 1184, 1187 (8th Cir.2001). Having conducted such an examination, we conclude that we lack jurisdiction over both appeals, albeit for different reasons.
BACKGROUND
The debtors filed a bankruptcy petition under chapter 12 on February 18, 1999. The case was dismissed at their request on July 20, 2000. During the pendency of their chapter 12 case, the debtors borrowed money from FarmPro Services, Inc., and Ag Acceptance Corporation. Both loans were approved by the bankruptcy court and properly perfected.
On September 29, 2000, the debtors filed another case, this time under chapter 13. A month later, on October 28, 2000, Congress enacted Public Law 106-397 which provided certain disaster relief payments for the 2000 crop year. On December 29, 2000, the debtors converted their case to a case under chapter 11 and converted their case, yet again, to a case under chapter 12 on June 4, 2001. In July of 2001, the Department of Agriculture issued two checks in the total sum of $80,000.00 as the debtors' entitlement under the year 2000 Disaster Program. The checks were actually made payable to FarmPro Services, Inc., and it is those payments which are the subject of the dispute among the parties.
ADVERSARY PROCEEDING 01-7031
On June 5, 2001, this adversary proceeding was commenced by FarmPro Services, *196 Inc., against the debtors and WSB Trucking. The complaint asked that the court determine, as among the parties to that adversary proceeding, the right to the disaster payments. The defendants answered and on September 3, 2001, the bankruptcy court issued a joint opinion in which it discussed the issues raised in this adversary proceeding and the Ag Acceptance Corporation adversary proceeding, which will be discussed later. In its opinion, the bankruptcy court determined that both FarmPro and Ag Acceptance had valid security interests in the disaster payments and that Ag Acceptance's interest was ahead of FarmPro's. While the court issued a joint opinion in the two adversary proceedings, it entered separate judgments for each. The judgment in this adversary proceeding read simply "[t]hat the security interest of FarmPro Services, Inc. in the crop disaster payment is not defeated by the event of the bankruptcy filing."
On September 13, 2001, FarmPro filed a motion to alter or amend the order and judgment.
The next day, the debtors filed a notice of appeal from the September 3rd judgment in this adversary proceeding. Although the notice of appeal was filed 11 days after entry of the judgment, one day after the last day of the appeal period, the pendency of FarmPro's timely motion extended the appeal period until the bankruptcy court's entry of an order disposing of the motion. See, Fed. R. Bankr.P. 8002(b). On October 12, 2001, the bankruptcy court denied FarmPro's motion to alter or amend the order and judgment. Ten days later, on October 22, 2001, the bankruptcy court extended the time for FarmPro to file an appeal from the order denying the motion. The order did not, at least by its terms, extend the time for appealing from the September 3rd judgment.
On November 13, 2001, FarmPro filed an appeal from the September 3rd judgment, together with a proper election to have its appeal heard by the district court. Two weeks later, on November 27, 2001, FarmPro filed an amended notice of appeal, together with another election to have its appeal heard by the district court, which indicated that it was instead appealing from the order denying its motion to alter or amend.
While the parties seem to assume that we have jurisdiction over the debtors' appeal from the September 3rd judgment and the district court has jurisdiction over FarmPro's appeal from the bankruptcy court's September 3rd opinion and order for judgment, we disagree. The issues in the two appeals are from closely interwoven, if not identical, determinations by the bankruptcy court. The fact that FarmPro tries to characterize its appeal as being from the opinion and order for judgment or from the order denying FarmPro's motion to alter or amend, while the debtors' is from the judgment, is a distinction that has no meaning in this context. Since FarmPro's election to have its appeal heard by the district court was timely, we conclude that we have been divested of jurisdiction over the debtors' appeal from the September 3rd judgment. We will thus dismiss that appeal with direction to return it to the clerk of the bankruptcy court for transmission to the district court.
ADVERSARY PROCEEDING 01-7037
This was a separate adversary proceeding commenced by the debtors on June 28, 2001, against Ag Acceptance Corporation, which was also making a claim to the disaster relief payments. While the debtors could have brought Ag Acceptance into the FarmPro adversary proceeding as *197 third party defendants, the debtors chose not to do so. Also, no party ever made a motion to consolidate the two adversary proceedings.
Ag Acceptance answered and the issues raised in this adversary proceeding were also addressed by the bankruptcy court in its September 3, 2001, opinion and order for judgment. Pursuant to its opinion and order, on September 3, 2001, the bankruptcy court entered a separate judgment in this adversary proceeding, dismissing the debtors' complaint against Ag Acceptance. Also, as discussed earlier, the debtors filed their notice of appeal from the two judgments on September 14, 2001, one day late.[2] Since there were no timely post judgment motions made in this adversary proceeding, the notice of appeal is simply untimely. We therefore lack jurisdiction over the appeal from the judgment in this adversary proceeding. Hamilton v. Lake Elmo Bank (In re Delta Eng'g Int'l, Inc.), 270 F.3d 584 (8th Cir.2001).
CONCLUSION
Therefore, we dismiss the appeal from both judgments. The clerk shall send the appeal from the judgment entered in Adversary Proceeding 01-7031 back to the clerk of bankruptcy court for transmission to the district court.
NOTES
[1] The Honorable William A. Hill, United States Bankruptcy Judge for the District of North Dakota.
[2] Federal Rule of Bankruptcy Procedure 8002(a) provides that a notice of appeal must be filed within ten days from entry of the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2374107/ | 470 S.W.2d 700 (1971)
Salvador GONZALES, Appellant,
v.
The STATE of Texas, Appellee.
No. 43949.
Court of Criminal Appeals of Texas.
September 16, 1971.
Larry Bales, Austin, for appellant.
Robert O. Smith, Dist. Atty., Philip A. Nelson, Jr., and Larry Lawrence Wells, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for possession of heroin; the jury assessed the punishment at 25 years.
The appellant challenges the sufficiency of the evidence.
Mary Hernandez, a 24 year-old prostitute and former heroin user, was the principal witness for the State. She testified that on September 27, 1968, she met with Officers Gann, Jones, Hersom, and Freudenberg at the Austin Police pound. After she and her automobile were searched, she was given $5 and Jones hid in the trunk of the car, which did not close completely so that he could see out of it. Hersom and Freudenberg followed in a white pickup. She drove to the 2600 block of Santa Rosa Street in Austin, where she met the appellant in a house. She asked him if he had some heroin. He then sold her one cap of heroin for $5. She then returned to the *701 car and drove off. She stopped the car on 5th Street to give the cap to Jones, who was still in the trunk. She got another $5 and proceeded to make another buy from another individual, and then they returned to the police pound.
Sheila Dunn testified that she searched Hernandez prior to the time she was given the money by the officers, and that she had no money or heroin in her possession.
Luther Jones, who was an Austin Police officer, testified that he and Sgt. Freudenberg and Sgt. Hersom searched the automobile and that they did not find any money or narcotics. He testified that while in the trunk he could see out because the trunk did not close all the way, and that he observed Hernandez enter the house on Santa Rosa Street, and that he saw the appellant at the house. He further testified that following this she gave him the capsule.
Officers Gene Freudenberg and Albert Hersom also testified as to the search at the police pound and testified that they followed the Hernandez vehicle in a pickup truck.
A chemist for the Department of Public Safety testified that the capsules contained heroin.
The evidence is sufficient to sustain the conviction. Arechiga v. State, Tex.Cr. App., 462 S.W.2d 1; Corpus v. State, Tex.Cr.App., 463 S.W.2d 4.
Next, the appellant complains because the trial court refused to grant a motion for continuance. The appellant had testified that he was in class at James Connally Technical Institute in Waco at the time the sale of heroin to Mary Hernandez was alleged to have been made. The appellant wanted to continue the case in order to locate Dr. Richter, the instructor of the class. The request was oral, not written, and was as follows:
"(BY DEFENSE COUNSEL): Your Honor, at this time I move to continue the case until we can locate Dr. Richter so we can get him to testify regarding the attendance records of 1968.
"THE COURT: Did you issue a subpoena?
"(BY DEFENSE COUNSEL): No, sir, I didn't.
"THE COURT: No due diligence; be denied.
"(BY DEFENSE COUNSEL): The defense rests, Your Honor."
The granting or denial of a motion for continuance is within the discretion of the trial court and will not be upset unless an abuse of discretion is shown. White v. State, Tex.Cr.App., 435 S.W.2d 160. No abuse of discretion is shown for the following reasons:
(1) It was not written as required by Art. 29.03, Vernon's Ann.C.C.P.
(2) It was not sworn to by the defendant himself as required by Art. 29.08, V.A.C.C.P.
(3) It does not meet the requirements of Art. 29.06, V.A.C.C.P.
Further, no objection was made to the court's ruling. No error is shown.
The appellant further complains that his constitutional right against self-incrimination was violated because when Mary Hernandez asked the appellant if he had heroin she was a police agent, and she failed to disclose this fact and she failed to warn the appellant of his right against self-incrimination. This ground of error is without merit. At the time she asked him about the heroin, he was neither under arrest nor in custody nor being detained nor deprived of his liberty in any way. There was no requirement that any warnings be given by Mary Hernandez at that time.
Lastly, the appellant complains that his counsel at trial was ineffective. We have examined the record and find that the *702 defense presented by appellant's counsel was adequate. A vigorous defense was presented and the State's witnesses were fully cross-examined. This contention is without merit.
There being no reversible error, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1096086/ | 606 So. 2d 972 (1992)
STATE of Louisiana, Plaintiff-Appellee,
v.
Andrea HALL, Defendant-Appellant.
No. Cr91-1296.
Court of Appeal of Louisiana, Third Circuit.
October 6, 1992.
*973 Louis Vogt, Vidalia, for defendant-appellant.
John F. Johnson, Dist. Atty., Vidalia, for plaintiff-appellee.
Before DOMENGEAUX, C.J., and COREIL[*] and PATIN[*], JJ. Pro Tem.
JOHN A. PATIN, Judge Pro Tem.
Defendant Andrea Hall appeals his conviction and sentence on two counts of attempted second degree murder.
On October 24, 1990 Andrea Hall was charged by bill of information with two counts of attempted second degree murder. La.R.S. 14:27 and La.R.S. 14:30.1. Following pleas of not guilty he was tried by jury and found guilty as charged. He was then charged by bill of information under the Louisiana Habitual Offender Law. La.R.S. 15:529.1. The trial court found him guilty of being a second felony offender. The sentence imposed on July 24, 1991 was as follows: on count one, one hundred years at hard labor; on count two, one hundred years at hard labor; sentences to run consecutively. This appeal is from these convictions and sentences.
As his first assignment of error the defendant claims the judgment is contrary to the law and evidence because the state did not prove the shooting of Joe Lewis Atkins and Theron Long was not done in self-defense.
When a defendant in a homicide case claims self-defense, the state has the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense, State v. Garcia, 483 So. 2d 953 (La.1986). In non-homicide cases, such as this, the defendant must carry the burden of proving self-defense by a preponderance of the evidence. State v. Barnes, 491 So. 2d 42 (La.App. 5 Cir.1986); State v. Mason, 499 So. 2d 551 (La.App. 2 Cir.1986). The issue of self-defense requires a dual *974 inquiry: (1) an objective inquiry into whether the force used was reasonable under the circumstances; (2) a subjective inquiry into whether the force was apparently necessary, State v. Perkins, 527 So. 2d 48 (La. App. 3 Cir.1988).
When the attempt statute is invoked and the charge is attempted second degree murder, it is required that the person have the specific intent to kill a human being. State v. Guin, 444 So. 2d 625 (La.App. 3 Cir.1983). La.R.S. 14:10 provides in pertinent part:
(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
At trial, Theron Long testified that on the night of July 3, 1990, he had gone out with a friend to a nightclub, where he saw Joe Lewis Atkins. Atkins was standing alone outside the club. Long began talking with him. He did not observe a weapon, gun or knife on Atkins. While standing there, Long heard a gunshot from behind them. Atkins ducked behind Long and they were both shot. Several more shots were then heard. Long observed a man coming toward them. As Long and Atkins ran in different directions, Long saw the man "going after Atkins". Long described the gunfire as "steady shooting". Long also heard a statement coming from the direction of the man who was shooting: "I told you I was going to get you."
Long further testified that Atkins did not make any threats or movement toward the man and did not pull a weapon. Long was treated at the hospital for his injury where a bullet entered and exited his body.
Doretta Lee testified about an earlier encounter between Atkins and the defendant which ended in a fight. She was present at the scene of the shooting on July 3. She saw defendant leaving the scene and asked him why he shot Atkins. Defendant responded that it was because Atkins had beat him with a stick, referring to the earlier incident at her house.
Evelyn Lee corroborated Doretta's testimony. Evelyn testified that defendant had hit her with brass knuckles during their altercation. She had to have her lip stitched at the hospital.
Testimony was also heard from Roosevelt Wellington, who testified that prior to the shooting, defendant asked him to deliver a message to Atkins. Defendant wanted to meet Atkins at a designated spot. Wellington gave the message to Atkins, but Atkins did not meet defendant as requested. On the night of the shooting, Wellington saw defendant, who asked him if he had seen Atkins. Defendant then observed Atkins talking to Long and started shooting. After defendant emptied his gun, someone told defendant to give up. At that point, Wellington thought defendant was attempting to reload his gun. On cross examination, Wellington stated he had told defendant that Atkins and two other men were looking for him. Wellington heard this information from an individual whom he did not know; he did not hear this statement from Atkins. Defendant told him that he would not be hard to find.
Louis Matthews, Jr., a witness to the shooting, testified that Long and Atkins were outside the club engaged in friendly conversation when defendant came running down the road stating "I told you I was going to get you" and began shooting. Matthews stated that Atkins made no moves toward defendant and began running away from defendant.
Joe Lewis Atkins testified about the incident at Doretta Lee's house. After this altercation Atkins did not want to have anything else to do with defendant. Atkins claimed he did not hit defendant with a stick and did not go to Doretta's house with the intention of fighting with defendant. Atkins also stated that defendant had reached for his knife.
Atkins further testified that on the night of the shooting, he received a message from Roosevelt Wellington to meet defendant; however, he never went to meet defendant. Atkins was not carrying a weapon that night. As the defendant came toward Atkins and Long, both men turned *975 around and defendant began shooting. When Atkins was hit, he ducked, attempting to "go around" Long. Atkins stated he did not grab Long to pull Long in front of him. Atkins went into the bayou and heard defendant say "Come on out because I want to kill you."
Atkins testified that he was shot in the left part of his hip and the bullet cannot be removed. He stated that he made no threatening moves toward defendant and did not even acknowledge his presence.
Defendant testified on his own behalf. Defendant admitted that he has been previously convicted for armed robbery and two counts of simple burglary, having pled guilty to these offenses. Defendant eventually turned himself in to the police for the instant offense because the officers kept coming to his house bothering his mother and he knew he was defending himself. Defendant does not deny firing the shots. Roger Hollins, a patrolman, testified that the police were looking for defendant until he turned himself in on August 15, 1990, at 3:00 a.m.
Defendant also stated that Atkins came to Doretta's mother's house, where defendant and Doretta were staying, and "busted me in the back of the head with a stick." Defendant claims Atkins hit him on his arm and leg also. Defendant also claims Atkins told him the following: "It ain't over with yet. I'm going to come back. I'm going to get some of my friends, and we're going to finish."
On the night of the shooting, defendant claimed that an associate of his told him Atkins was looking for him and had a gun. Roosevelt Wellington also told him that Atkins and two other men were looking for him. Defendant claims he told Wellington to tell Atkins he was not hard to find, but denies arranging to meet Atkins at a certain place to fight. After this, defendant went home, got his gun, and went to the nightclub looking for Doretta. As he approached the club, he saw Atkins standing by a car talking. Atkins noticed defendant and "started reaching like he was reaching for a gun." Defendant then pulled out his gun and yelled "move". Long jumped to the side, but Atkins pulled him back in front of him. Defendant then fired, trying to shoot Atkins. Defendant stated that the gun he thought Atkins was reaching for turned out to be a little knife. Defendant testified that he never intended to harm Long; he only intended to protect himself. On cross examination, defendant stated that before he fired his gun, Atkins had taken two or three steps toward him. Defendant admitted that Atkins never pulled his knife.
La.R.S. 14:27 provides:
A. Any person who, having specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
La.R.S. 14:30.1 provides:
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm;
La.R.S. 14:19, regarding self-defense, provides:
The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.
From the evidence submitted the jury could have found the essential elements of attempted second degree murder as to Joe Lewis Atkins beyond a reasonable doubt and that defendant has failed to prove self-defense by a preponderance of the evidence. As stated above, defendant must have had the specific intent to kill. State v. Guin, supra. Theron Long testified at trial that he heard defendant say "I told you I was going to get you", referring *976 to Atkins. Doretta Lee testified that after the shooting, defendant told her he shot Atkins "because he beat me with a stick" and stated that he meant to shoot Atkins. Immediately prior to the shooting, Roosevelt Wellington saw defendant, who stated he was looking for Atkins. Wellington even thought defendant was trying to reload his gun after shooting at Atkins, who began to run away. Further, Atkins testified that defendant told him "Come on out because I want to kill you." Defendant even admitted that he was trying to shoot Atkins. Any rational trier of fact could have found beyond a reasonable doubt that defendant had the specific intent to kill Atkins.
As for his claim of self-defense, defendant asserts that he armed himself with a pistol in reasonable fear for his safety and as he approached Atkins he fired, fearing immediate great bodily harm and having no means of escape. However, Long testified that he never observed a weapon on Atkins. Atkins and two other witnesses stated that no moves were made toward defendant. Defendant even admitted Atkins never pulled anything from his pocket. Defendant did not carry his burden of proving self-defense as to Atkins by a preponderance of the evidence.
As for the other victim, Theron Long, the state has also proved a specific intent to kill and that defendant has failed to prove self-defense by a preponderance of the evidence. By shooting at Atkins with a gun, with Long standing next to him, defendant must have actively desired the criminal consequences to result. In State v. Kennington, 515 So. 2d 521 (La.App. 1 Cir.1987), the defendant pointed a gun at a crowd and fired two shots. An innocent bystander was killed. Defendant was convicted of second degree murder. The court stated: "The evidence showing that defendant fired a lethal weapon, aimed in the direction of a crowd of innocent bystanders, is clearly sufficient to prove she had the specific intent to kill or to inflict great bodily harm." In the instant case, defendant fired a lethal weapon at two persons, which is sufficient to prove that defendant had the specific intent to kill Atkins and Long. Further, in State v. Tyler, 342 So. 2d 574 (La.1977), in which the defendant was convicted of first degree murder by firing a gun into a crowd and thereby killing someone, the court stated that "there is authority in law for the proposition that shooting into a crowd indiscriminately with intent to kill someone is an assault with intent to kill each of them." The court found defendant guilty of first degree murder because of his intent to kill or inflict great bodily harm upon more than one person at the time of the shooting. The law does not require that the intent to kill be of the specific victim but only that the defendant had the intent to kill someone. No evidence was presented by defendant regarding self-defense as to Long.
This assignment of error lacks merit.
In his second assignment of error, defendant claims his sentences are excessive.
Article 1, § 20 of the Louisiana Constitution of 1974 prohibits "cruel, excessive, or unusual punishment." A sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. State v. Sepulvado, 367 So. 2d 762 (La.1979); State v. Naquin, 527 So. 2d 601 (La.App. 3 Cir.1988). To constitute an excessive sentence this court must find the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So. 2d 1205 (La.1981); State v. Everett, 530 So. 2d 615 (La.App. 3 Cir.1988), writ denied, 536 So. 2d 1233 (La.1989). The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So. 2d 1210, 1217 (La.1982).
After defendant's conviction, the state filed a bill of information charging defendant as a habitual offender. Defendant had been previously convicted of armed robbery and two counts of simple burglary in 1985. The instant offense occurred only *977 a few months after defendant had been released from prison on his prior convictions.
The punishment for second degree murder is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La.R.S. 14:30.1. La.R.S. 14:27 provides in pertinent part:
D. Whoever attempts to commit any crime shall be punished as follows:
(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years.
La.R.S. 15:529.1, the habitual offender statute provides:
A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;
Therefore, the sentencing range for defendant was from twenty-five years to one hundred years. Defendant was sentenced to one hundred years on each count, the sentences to run consecutively.
At the sentencing hearing, the state referred to defendant's prior offenses in 1985: armed robbery and two counts of simple burglary. The state claimed that after his release, defendant was known to habitually carry a large butcher type knife and had beaten a woman with a pair of brass knuckles. While incarcerated for the instant offense, the state stated that defendant stabbed two different inmates and attacked one of the jailers with a razor. Further, on the day of the sentencing hearing, defendant had gotten out of his shackles and was prepared to use the chains and shackles as a weapon. The presentence investigation report reveals that based on the above incidents, defendant was charged twice with aggravated battery and one count of attempted second degree murder.
In giving reasons for the sentence imposed, the trial judge stated that defendant would have a tendency to commit another crime and has shown a propensity to violence. Further, defendant showed no remorse and the victim who was shot in the chest, Long, could have easily been killed. Defendant's conduct threatened serious harm and defendant did not act under strong provocation. The judge also stated he saw no indication that defendant would respond to probationary treatment.
We have found only one case wherein the defendant was convicted under similar facts. In State v. Williams, 435 So. 2d 1047 (La.App. 5 Cir.1983), writ denied, 439 So. 2d 1074 (La.1983), a sentence of one hundred years imprisonment for one count of attempted murder and being a habitual offender was found to not constitute cruel and unusual punishment in light of the fact that defendant fired his gun at a police officer in a crowded public establishment in complete disregard for the safety of the intended victim and the bar patrons.
In the instant case, defendant fired his gun in the parking lot of a nightclub where the victim and others were congregated. This was in complete disregard for the safety of these individuals. Two men were actually shot and wounded. Because of defendant's prior convictions, he was adjudged a habitual offender. Based on incidents which occurred during defendant's incarceration, defendant was charged twice with aggravated battery and a charge of attempted second degree murder is pending. As stated by the trial judge, defendant shows a tendency to commit other crimes, based on his propensity to violence. Defendant has shown no remorse and death could have easily resulted from the shooting incident.
*978 The facts in this case do not justify disturbing the sentences imposed. There is no merit to this assignment.
In his third assignment of error, defendant contends the trial court erred in considering evidence of other crimes of which he had not been convicted and he is innocent of these alleged crimes which are only unproven allegations.
The other crimes to which defendant refers were brought out by the state at the sentencing hearing and were also contained in the pre-sentence investigation report. The state claimed that defendant carried a large butcher knife and had beaten a woman with a pair of brass knuckles. Further, during his incarceration pending trial for the instant offenses, defendant stabbed two different inmates and attacked one of the jailers with a razor.
The sources of information from which a sentencing judge may draw are extensive. It is entirely appropriate for the trial judge to consider criminal activity which has not led to a conviction. State v. Jones, 546 So. 2d 1343 (La.App. 3 Cir.1989). In State v. Berry, 534 So. 2d 70 (La.App. 3 Cir.1988), writ denied, 540 So. 2d 326 (La. 1989), the trial court considered the defendant's two previous arrests in determining sentence. Both charges were apparently dismissed or rejected. This court stated: "The trial court can consider arrests, not just convictions, in determining an appropriate sentence."
This assignment of error lacks merit.
Through his fourth assignment of error, defendant claims his right to counsel was violated during the sentencing hearing because he was gagged and his hands were in handcuffs, thereby preventing him from consulting with his attorney or communicating to the judge any mitigating circumstances.
At the sentencing hearing the judge stated:
COURT: All right. I'd like to note for the record Mr. Hall is bound and gagged and shackled and there was serious difficulty in obtaining his presence in court this morning. He is accompanied by his lawyer, Mr. Louis Vogt, but he is unable to speak. He is conscious and he can hear the proceedings. He's not mentally or physically impaired, other than he cannot speak. Mr. Vogt, do you have anything to say?
VOGT: No sir, Your Honor.
DEFENDANT: (Muffled statement.)
The state also made the following statement during the sentencing hearing:
This morning when they came to get him out of his cell, he had papered up the window on the cell so he couldn't be seen. He had gotten out of his shackles and had the chains and shackles ready and prepared to use as a weapon, and no doubt, would have used them on anybody he could have got his hands on.
Although defense counsel does not state in his brief why he was gagged and handcuffed, the facts in the cited statement could have been the reason for the difficulty in obtaining defendant's presence at the sentencing hearing.
In Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), the Supreme Court of the United States laid down guidelines for the trial of a disruptive defendant as follows:
It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.
The Louisiana Supreme Court has recognized that the use of restraining devices, *979 including manacles, is within the sound discretion of the trial judge. In the absence of a clear showing of abuse of discretion on the part of the trial judge, a conviction will not be disturbed on appeal because of the restraint imposed upon a defendant. State v. Burnette, 337 So. 2d 1096 (La.1976).
In the instant case the trial judge did not clearly abuse his discretion. The defendant's behavior earlier that morning explains the need for restraints. Defendant has failed to demonstrate how he was prejudiced. He has failed to show what mitigating evidence he would have given to the court or what information he would have given to defense counsel. Given the trial judge's wide discretion, we cannot say that the gagging and handcuffing of defendant was unnecessary.
This assignment of error lacks merit.
Defendant filed a pro se Motion to Supplement Appeal, which alleged that he was denied effective assistance of counsel. Defendant claims that the trial judge gave a misleading jury instruction regarding an essential element of the crime. Defense counsel allegedly failed to object to this instruction. However, defendant has provided this court with only the alleged written instructions and not the actual transcript of the instructions given. This assignment of error was not designated in the assignments of error filed with the trial court.
Defendant contends that the trial judge instructed the jury that to find defendant guilty of attempted second degree murder, it must find that defendant had the specific intent to kill or to inflict great bodily harm. Further, defense counsel failed to object to this instruction, which defendant contends denied him effective assistance of counsel.
A claim of ineffective assistance of counsel is properly raised in a petition for post-conviction relief. Where, however, the record contains evidence necessary to decide the issue and the alleged ineffectiveness is raised on appeal by an assignment of error, the issue should be considered. See State v. Seiss, 428 So. 2d 444 (La.1983); State v. Heacox, 543 So. 2d 101 (La.App. 3 Cir.1989).
The only evidence of the alleged erroneous jury instructions is a copy of written instructions, as stated above. The closing arguments and the actual instructions given to the jury are not contained in the record on appeal and have not been provided by defendant.
The Sixth and Fourteenth Amendments guarantee the defendant in a state criminal proceeding assistance of counsel for his defense. The United States Supreme Court has held that "... The right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449, n. 14, 25 L. Ed. 2d 763 (1970).
In outlining the convicted defendant's burden of proof in an ineffective assistance case, the courts have composed a two fold test. The defendant must show that a deficient performance on the part of his attorney prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); State v. Brooks, 505 So. 2d 714 (La.1987).
The first prong of the test requires a showing of deficiency on the part of the defense counsel; this inquiry examines whether counsel violated some duty to the client. State v. Berry, 430 So. 2d 1005 (La. 1983); State v. Hartman, 479 So. 2d 948 (La.App. 3 Cir.1986), writ denied, 486 So. 2d 748 (La.1986). The second prong of the test requires a showing of prejudice resulting from defense counsel's deficient performance. This inquiry examines whether "... there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, supra.
The deficiency and prejudice prongs may be addressed in either order. "... [A] court need not determine whether counsel's performance was deficient as a result of the alleged deficiencies. The object of an ineffective claim is not to grade counsel's performance. If it is easier to dispose of an ineffective claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be *980 followed." Strickland v. Washington, supra.
The instructions submitted by defendant reveal that the trial judge first read the attempt statute, La.R.S. 14:27, and the second degree murder statute, La.R.S. 14:30.1. The judge then rephrased La.R.S. 14:30.1, stating that to convict defendant of second degree murder, the jury must find that defendant "killed the victim and that the defendant acted with a specific intent to kill or inflict great bodily harm." Finally, the judge stated:
Thus, in order to convict the defendant of Attempted Second Degree Murder, you must find;
(1) That the defendant had a specific intent to commit the crime of Second Degree Murder; and
(2) That the defendant did or omitted an act for the purpose of and tending directly toward the commission of the crime of Second Degree Murder.
To convict the Defendant of the offense charged, you must find beyond a reasonable doubt that the State proved every element of Attempted Second Degree Murder.
While specific intent to either kill or to inflict great bodily harm will support a conviction of second degree murder under La.R.S. 14:30.1, only specific intent to kill will support a conviction of attempted second degree murder in violation of La.R.S. 14:30.1 and La.R.S. 14:27.
The U.S. Supreme Court has stated that the complete denial of counsel (Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)) and adjudication by a biased judge (Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)) constitute structural defects in a trial which cannot be evaluated as harmless error. Other errors which occur during the course of the trial are considered "trial errors" and are subject to a harmless error analysis. Arizona v. Fulminante, ___ U.S. ___, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). An improper jury instruction is a trial error and is subject to such a harmless error evaluation. State v. Cage, 583 So. 2d 1125 (La.1991), U.S. cert. denied, ___ U.S. ___, 112 S. Ct. 211, 116 L. Ed. 2d 170 (1991).
The trial error is harmless when a reviewing court is convinced that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). This analysis "mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless." United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). If a reviewing court finds that the trial record establishes guilt beyond a reasonable doubt, the interests of justice have been satisfied and the judgment should be affirmed. Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).
As previously discussed the trial record establishes the guilt of defendant of two counts of attempted second degree murder beyond a reasonable doubt. The harmless error test should be used in the instant case and in applying such, the erroneous jury charge constituted harmless error under the cited cases, and therefore, relator has failed to show how he was prejudiced by his attorney's failure to object. The entire record establishes defendant's intent to kill Atkins and Long beyond a reasonable doubt.
This assignment of error lacks merit.
For the foregoing reasons the conviction and sentences herein are affirmed.
AFFIRMED.
NOTES
[*] Judges Joseph E. Coreil and John A. Patin, retired, participated in this decision by appointment of the Louisiana Supreme Court as Judges Pro Tempore. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545279/ | 128 F.2d 653 (1942)
LONG
v.
MORRIS.
No. 7932.
Circuit Court of Appeals, Third Circuit.
Argued April 9, 1942.
Decided May 21, 1942.
Rehearing Denied June 30, 1942.
Edwin D. Steel, Jr., of Wilmington, Del., and Charles J. Hepburn, of Philadelphia, Pa. (Philip R. Hepburn, of Philadelphia, Pa., on the brief), for appellant.
Walter Biddle Saul, of Philadelphia, Pa. (Otto Kraus, Jr., and Saul, Ewing, Remick & Harrison, all of Philadelphia, Pa., on the brief), for appellee.
Before MARIS, JONES, and GOODRICH, Circuit Judges.
PER CURIAM.
This case was tried and disposed of below upon the assumption that the rights of the parties to the suit were to be governed according to the law of Pennsylvania. The suit was in a federal court (sitting in Pennsylvania) whose jurisdiction rested upon diversity of citizenship. The law (parol evidence rule) pertinent to the establishment of the contract in suit relates to matter of substance. 3 Beale, Conflict of Laws (1935) § 599.1. The rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 *654 A.L.R. 1487, therefore, attaches. The requirement that, where federal jurisdiction depends upon diversity of citizenship, substantive rights are to be adjudged according to local law contemplates the application of the local state's rule of conflicts as well. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477.
In the instant case the contract in suit had been made in Delaware. Under the Pennsylvania rule of conflicts the rights and liabilities of the parties were to be determined according to the law of the place of contracting. Cf. Marcus v. Heralds of Liberty, 241 Pa. 429, 433, 88 A. 678; see also Restatement, Conflict of Laws (1934) § 346; 2 Beale, supra, p. 1210. Consequently the controlling Pennsylvania law was to be ascertained by that state's rule of reference to the law of Delaware. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., supra, and Peerless Weighing & V. Mach. Corp. v. International T. S. Corp., 3 Cir., 126 F.2d 239, 241.
It so happens that the parol evidence rule, which is here involved, is the same in Delaware as it is in Pennsylvania. Counsel for both parties so concede. In Universal Products Co. v. Annette E. Emerson, 6 W. W. Harr. 553, 36 Del. 553, 568, 179 A. 387, 100 A.L.R. 956 (the suit which produced the fee now in controversy), the Delaware Supreme Court, citing among other cases Dougherty v. Briggs, 231 Pa. 68, 79 A. 924, held that "where the question, as to whether an alleged contract was made, turns [as here] on the proper conclusion to be drawn from a series of letters and telegrams considered in connection with other pertinent facts and circumstances proved", the question is for the jury. Also, see Foreman's Systems, Inc., v. Milk Dealers' Crate Corp., 13 Del. Ch. 351, 362, 120 A. 358. Comparison of the Delaware rule with the rule in Pennsylvania as enunciated in Gianni v. R. Russell & Co., Inc., 281 Pa. 320, 126 A. 791, which the learned court below cited and relied upon, will disclose the similarity of the two rules. Consequently the law which the trial court applied was to the same effect as the law which would have been found upon reference to the law of Delaware so that, substantially, the case was ruled in keeping with the law of Delaware.
Nothing need be added to what was said in the opinion of the learned trial judge in disposing of the defendant's motions for judgment and for a new trial. Under the parol evidence rule, as pertinently applied by the court below, the essential findings with respect to the existence of the contract and its terms depended upon the solution of issues of fact which it was the jury's province to resolve. The case was fairly tried and submitted under instructions which were both proper and adequate, and the jury's answers (in the nature of a special verdict) to the questions propounded by the trial court concluded the facts in the plaintiff's favor. Thereby it was established that the admitted original parol agreement between the parties with respect to the division between them of a contingent fee for legal services to a particular client continued to subsist unaltered in any particular as between the contracting parties. In that situation, the trial court had no alternative but to enter judgment on the jury's verdict for the plaintiff.
The judgment of the District Court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545277/ | 128 F.2d 660 (1942)
McSWEENEY
v.
PRUDENTIAL INS. CO. OF AMERICA.
No. 4910.
Circuit Court of Appeals, Fourth Circuit.
June 4, 1942.
*661 Thomas M. Boulware, of Barnwell, S. C. (George Warren, of Hampton, S. C., on the brief), for appellant.
Robert McC. Figg, Jr., of Charleston, S. C., for appellee.
Before PARKER and DOBIE, Circuit Judges, and PAUL, District Judge.
PARKER, Circuit Judge.
This suit was instituted in the court below to cancel a life insurance policy on the ground of fraudulent representations contained in the application. The insured died while the suit was pending and an amended answer filed by the beneficiary asked recovery on the policy. The answer denied fraud and pleaded waiver of the misrepresentations by reason of knowledge of the facts on the part of the company's medical examiner. The case was referred to E. W. Mullins, Esq., as special master, who filed an able and comprehensive report finding the facts fully and applying the law in the light of the decisions of the Supreme Court of South Carolina. The findings and conclusions of the special master were approved and adopted by the court below, and judgment was entered thereon denying recovery on the policy and ordering its cancellation upon return of the premiums. From this judgment the beneficiary has appealed.
The special master found that the misrepresentations for which cancellation of the policy was asked were material to the risk, were relied on by the company in issuing the policy and were false to the knowledge of the insured when they were made. He concluded that they constituted constructive fraud for which the policy might be avoided, even though, as he found, the insured had no conscious design or intent to defraud the company. He found also that the knowledge of the medical examiner relied upon as waiver was acquired more than two years prior to the examination, when the examiner was acting as insured's physician and not as the company's agent, that there was nothing to show that he had the information in mind at the time of the examination or communicated it to the company and that the company was not chargeable therewith. The questions raised by the appeal relate to the correctness of these findings and conclusions.
The facts are that in January, 1935 the insured, a man 44 years of age, made application to the company for a policy on his life in the sum of $5,000, which was issued in the month of February following. In the application, which was attached to and made a part of the policy, he gave the following answers to questions relating to blood pressure and consultation with physicians, viz.:
"7A. Have you ever had albumin, blood or sugar in your urine, or had abnormal blood pressure? (If yes, give particulars including treatment in space below.)
"No.
"9-A. Have you been attended by a physician during the past three years? Give dates, complaints, doctors' names and addresses.
"Yes. Malarial fever, 1932. F. H. Boyd, Allendale, S. C.
"Details of 6, 7, 9, 10 should be given below. Include dates (month and year), nature of illnesses, time disabled and results, attending physicians' names and addresses and names of hospitals, sanitaria, or other institutions, if any.
"Malarial fever, 1932. Complete recovery. F. H. Boyd, M.D., Allendale, S. C.
"10-B. Do the answers to questions 6, 7, 8 and 10-A, with details given in space below, constitute a complete statement of all your illnesses, surgical operations and sojourns in hospitals, sanitaria and other institutions?
"Yes."
These answers were false and must necessarily have been known to insured to be false at the time they were made. As a matter of fact he had arteriosclerosis and high blood pressure in 1932, had suffered what was evidently a slight brain hemorrhage which resulted in a numbness of the face, arm and leg on his left side and thickness of the tongue, had consulted Dr. Levy, an expert of Augusta, Georgia, with reference thereto on three different occasions in October, November and December, 1932, had been told by Dr. Levy that he had high blood pressure and had been given treatment and put on a diet which he had followed rigorously. The condition of insured, effectually concealed by the false answers contained in the application, resulted in a stroke of paralysis in December, 1935, which completely disabled him and led to the discovery of the facts upon which the suit for cancellation is based.
The examining physician for the company was the Dr. Boyd referred to in the answers above quoted. He was an elderly *662 man of high character with a large practice and other business. He was the family physician of insured, and in 1932 had referred insured to Dr. Levy to be examined and had received a report of the examination. He wrote the answers to the questions in the application, which was signed by insured; but there is nothing to show that he did not correctly set down the answers given by insured or that he had in mind at the time the information which he had received from Dr. Levy more than two years before with reference to insured's condition.
On these facts we think that the lower court correctly held that the policy was avoided as a result of the false representations contained in the application. Whether termed constructive fraud or not, there can be no question but that, under the law of South Carolina, such false representations, knowingly made by an applicant for insurance with respect to material facts necessarily within his knowledge, as distinguished from matters of opinion or matters as to which there is possibility of mistake, constitute fraud as matter of law for which the policy may be cancelled. Johnson v. New York Life Ins. Co., 165 S.C. 494, 164 S.E. 175, 177. In that case, as here, the fraud alleged consisted in false representations as to consultations with physicians. It was proven in the case, it is true, that there were also false representations as to use of intoxicants; but the opinion points out that the pleadings contained no allegation of false representation with respect to these and that the decision was based upon the false representations as to consultation with physicians. The court said that in order to defeat the policy it would be necessary to show that the statements in the application relied on in the pleadings were untrue, that their falsity was known to applicant, that they were material to the risk and relied on by the insurer, and that they were made with intent to deceive and defraud the company. After stating that the question of the existence of fraud was ordinarily for the jury, the court held that on the facts there verdict should have been directed for the company, reversed judgment for the plaintiff and directed that judgment for the company be entered. The court pointed out that the false representations with respect to consultation with physicians were material to the risk and, with respect to the necessary intent, had the following to say: "Finally, the intent with which representations or misstatements of facts are made is a thing that is locked up in the heart and consciousness of the applicant. It may be shown by his express words, or it may be deduced from his acts and the facts and circumstances surrounding the making of the misrepresentations, though on this question the mere signing of the application containing the answers alleged to be false is not conclusive. Huestess v. [South Atlantic Life] Insurance Co., 88 S.C. 31, 70 S.E. 403. Under the circumstances of this case, we do not see how any reasonable inference as to the applicant's intent in making his answer to the questions under consideration could be drawn from the undisputed facts other than that he deliberately intended to deceive the company and thereby procure the insurance."
To the same effect is the holding in the more recent decision of Murray v. Metropolitan Life Ins. Co., 193 S.C. 368, 8 S.E.2d 314, 317. In that case an insured had falsely represented in an application for reinstatement that he had not been treated by a physician, whereas the fact was that he had been so treated for tuberculosis. While distinction was drawn by the court between the original application for the policy and the application for reinstatement, this related only to the statutory requirement that the former be attached to the policy if the company was to rely on misrepresentations therein contained. There was no question but that the false answers in the application for reinstatement were to be treated as representations and not warranties, and the court held that their falsity avoided the policy and that verdict should have been directed to that effect, saying: "These representations, as shown by the evidence, were false, were material to the risk, were acted upon by the insurer, and were known by the insured to be false. The representations related to facts within the knowledge of the applicant, and not within the knowledge of the company, and were material. In such case the applicant must answer truthfully. As was said in Mutual Life Ins. Co. v. Leaksville Woolen Mills, 172 N.C. 534, 90 S.E. 574, 577: `* * * The purpose of such questions is twofold: First, to elicit information, which the company regards important; second, to give the sources from which the company may obtain further information. The parties themselves have made these questions and answers material. Their materiality depends, not only upon their own purport, but upon the fact that the contracting *663 parties have agreed that the written application containing these questions and answers is the basis upon which the contract of insurance shall be made or refused.'"
The case of Mutual Life Ins. Co. v. Leaksville Woolen Mills [172 N.C. 534, 90 S.E. 577], cited and quoted from above, was a case involving false representations in an application for a policy, not in an application for reinstatement; and the Supreme Court of North Carolina, in the course of the opinion therein, states very clearly the rule which we understand to be the rule recognized in South Carolina as well as in North Carolina. The court said: "Nothing herein contravenes the well-settled doctrine that where a question is asked, which must be necessarily answered by an opinion, the mistake of the applicant in answering such question, made honestly and in good faith, will not avoid the policy. This is not so, however, where the questions asked relate to facts within the knowledge of the applicant, and not within the knowledge of the company, and where the questions and answers are material. In such case the applicant must answer truthfully."
To like effect is the rule laid down by this court in Atlantic Life Ins. Co. v. Hoefer, 4 Cir., 66 F.2d 464, 466, a case from South Carolina very similar to the case at bar, in which it is said that "a material representation, known by the insured to be untrue, invalidates a life insurance policy without further proof of actual conscious design to defraud." See also New York Life Ins. Co. v. McCurdy, 10 Cir., 106 F.2d 181, and Columbian Nat. Life Ins. Co. v. Rodgers, 10 Cir., 93 F.2d 740, applying the law of Kansas; Guardian Life Ins. Co. v. Clum, 3 Cir., 106 F.2d 592, and Equitable Life Assur. Soc. v. Saftlas, D.C., 38 F. Supp. 708, applying the law of Pennsylvania; Great Northern Life Ins. Co. v. Vince, 6 Cir., 118 F.2d 232, applying the law of Michigan; and Metropolitan Life Ins. Co. v. Madden, 5 Cir., 117 F.2d 446, 451, applying the law of Florida. These decisions are illuminating in that they apply the law of states which, like South Carolina, require an intent to defraud as well as falsity with respect to a material representation as a basis for avoiding the policy. In the case last cited Judge Hutcheson, speaking for the Circuit Court of Appeals of the Fifth Circuit, clearly states the rule applicable where there is a material false statement which is false within the knowledge of the applicant making it. He says:
"The answer sought to be elicited by the question was an answer of fact and not of opinion. If it was not material, its falsity was wholly unimportant, but if, as here, it was material as matter of law, and, as here, the answer was, and was known to be, untrue, its giving prevented recovery on the policy without regard to whether the answer was given with a conscious, fraudulent purpose to deceive. This is not to say that false is not sometimes a word of double meaning as in connection with Question and Answer 11, calling for an opinion whether applicant had had any ailment or disease of the stomach or intestines. In such cases whether the answers were given in good faith, that is, whether they expressed the honest opinion of the answerer or were dishonest opinions given with intent to deceive, is material. * * *
"Nor is it to say that in cases of misstatements of fact where there is a dispute of fact as to whether the misstatements were knowingly made or were the result of oversight or inadvertence, a jury issue could not be made out. But it is to say as to Question 13, the purpose of which was to reveal medical consultations and treatments of the applicant, so that the insurer might have the benefit of this information as a basis for further inquiries in determining his insurability; that it was in law material; that the answer to it, if given truthfully, was likewise material; that the evidence admits of no other conclusion than that, whether or not fraudulently intended, it was deliberately and knowingly made; and that because of this misrepresentation, the judgment may not stand. Columbian National Life Ins. Co. v. Rodgers, 10 Cir., 93 F.2d 740, and authorities cited in note 7, supra.
"This is settled law in New York, where it is claimed that one of the policies became a contract, and in Florida, from which this case comes."
Some confusion is introduced into the consideration of the case at bar because the special master found that the evidence was insufficient to show that the insured had a conscious design or intent to defraud the company, although finding that the answers of insured with respect to high blood pressure and to his not having consulted any other physician than Dr. Boyd were material, were untrue and were known by him to be untrue when made. *664 The finding of the special master as to the absence of conscious design to defraud is shown by his report to have grown out of the distinction drawn by him between moral fraud and constructive fraud. We do not find it necessary to explore that distinction. We think it clear that fraud of the sort required to avoid the policy is shown to exist where there is a false representation as to a material matter, which is false to the knowledge of the applicant at the time it is made and which is made for the purpose of being acted on by the company. Where these facts appear, it is idle to inquire further whether there was intent to defraud; for the intent to defraud in such case is the intent to obtain the policy by the false representations. Any question as to whether the insured may honestly have thought that he had recovered from the serious ailment from which he knew that he had suffered and for which he had consulted a physician is beside the point. Inquiries were addressed to him with regard thereto as a basis for determining whether the policy should be issued; he knew that his answers would be taken into consideration and acted on by the company; and, when he made false answers which he knew to be false as a basis for such action, fraudulent intent in making them may reasonably be inferred. Smith v. Vandiver, 149 S.C. 540, 147 S.E. 645. His good faith, under such circumstances, is not a matter for speculation, but must be determined from a consideration of what he has deliberately done. Nettles v. Sottile, 184 S.C. 1, 191 S.E. 796, 805.
Decisions of the South Carolina court relied on by appellant holding that under circumstances quite different from those involved here the issue of fraud was for the jury, are not in point. In the first place, the question as to whether a case should be submitted to the jury or verdict directed is a matter of federal practice as to which local decisions are not controlling, even if this were an action at law. Gorham v. Mutual Benefit Health & Accident Ass'n, 4 Cir., 114 F.2d 97, 99. While the cases relied on are authority for the position that a fraudulent intent in addition to the false representations there shown is necessary to establish fraud, they are not authority for the position that fraudulent intent is not to be inferred from the making of false representations which are false within the knowledge of the person making them and are material and made to be acted on; and they do not militate against the holding of the Johnson case to the effect that fraudulent intent must be inferred from such representations when no other conclusion can reasonably be drawn from them. In the second place, the case was one heard in equity and not at law; and this court has full power to review the findings of fact. We entertain no doubt upon the evidence appearing in the record that the making of the false answers in the application as to matters inquired about, which were false to the knowledge of the applicant when making them, established fraud vitiating the policy within the holding of the Johnson case.
Applicant is shown by the evidence to have been a man of intelligence and the publisher of three rural newspapers. He must have known the significance of the numbness in his left side and the thickness of tongue which accompanied it. He consulted a specialist, was told that he had abnormally high blood pressure, and took the matter so seriously that he took off weight too rapidly as a result of following the diet prescribed for him. Nevertheless he entirely failed to disclose these serious matters in response to the questions in the application making specific inquiry with regard to them, although he did mention treatment by a different doctor for a minor ailment. He was uninsurable and must have known that he was uninsurable; and if he had truly disclosed the facts as to which specific inquiry was made, he would never have obtained the policy. He obtained it by false answers, known to him to be false, which concealed his true condition. As said in the Johnson case, "the undisputed facts can reasonably give rise to only one inference, namely that the policy was procured by fraud."
We approve the finding of the master, confirmed by the District Judge, to the effect that, at the time of Dr. Boyd's examination of the insured, he did not have in mind the information furnished him by Dr. Levy more than two years before, and that the company is not chargeable therewith. In view of the high character of Dr. Boyd and the many matters demanding his attention, it is reasonable to assume that he did not have in mind, when writing down the answers of insured, information which showed the answers to be false. If he did not, the company is not chargeable with notice with regard thereto. In South Carolina the rule that knowledge or notice on the part of the agent is *665 treated as notice to the principal is based on the duty of the agent to communicate all material information to the principal and the presumption that he has done so. Knobelock v. Germania Savings Bank, 50 S.C. 259, 27 S.E. 962. And where this rule prevails, it is well settled that "generally speaking, a principal is chargeable with knowledge which his agent acquired before the commencement of the relationship only when that knowledge can reasonably be said to be present in the mind of the agent while acting for the principal, or where he had acquired it so recently as to raise the presumption that he still retained it in mind." 2 Am.Jur. 294; In re Distilled Spirits, 11 Wall. 356, 20 L. Ed. 167; notes 4 A.L.R. 1615, 38 A.L.R. 823.
A finding that Dr. Boyd had in mind the facts showing that the answers in the application were false would make him a party to the fraud practiced on the company; and, in such case, the company would not be charged with his knowledge. 2 Am.Jur. 299; Keeton v. Jefferson Standard Life Ins. Co., 4 Cir., 5 F.2d 183, 187; Zeidel v. Connecticut General Life Ins. Co., D.C., 44 F.2d 843. We agree with the master, however, that it is reasonable to assume that the doctor did not have in mind the information which he had received and was not a party to the fraud.
For the reasons stated, the decree appealed from will be affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1683004/ | 495 S.W.2d 583 (1973)
Lois Faye CARTER, Administratrix of the Estate of Elsie lone Lindsey, Deceased, Appellant,
v.
Lynn VAN METER, Temporary Administrator of the Estate of Freda LaVerne Hughes, Deceased, Appellee.
No. 18096.
Court of Civil Appeals of Texas, Dallas.
May 17, 1973.
Rehearing Denied June 14, 1973.
*584 Richard E. Green, Touchstone, Bernays & Johnston, Dallas, for appellant.
William N. Hamilton, Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellee.
CLAUDE WILLIAMS, Chief Justice.
The vital question presented by this appeal is whether a cause of action expressly conferred upon the named survivors by virtue of the Texas Wrongful Death statutes (Vernon's Tex.Rev.Civ.Stat.Ann. arts. 4671-4678) survives the death of such party.
The facts are without dispute. Raymond Lindsey died instantly on December 3, 1969 as a result of an automobile collision between a vehicle he was driving and a vehicle being driven by Freda LaVerne Hughes who was also killed in the accident. Raymond Lindsey left surviving him a wife, Elsie Ione Lindsey, and four adult children, none of whom were dependent upon him at the time of his death. Subsequently, on February 24, 1970, Elsie Ione Lindsey died. On April 7, 1971 Lois Faye Carter, administratrix of the estate of Elsie Ione Lindsey, deceased, brought this action complaining of Lynn Van Meter, temporary administrator of the estate of Freda *585 LaVerne Hughes, deceased, in which she sought a judgment on behalf of the estate of Elsie Ione Lindsey, deceased, for damages pursuant to the Wrongful Death statutes of the State of Texas, such damages being in the form of anticipated pecuniary benefits which allegedly would have been derived from Mrs. Lindsey's husband, had he lived. In said action recovery was also sought for Mr. Lindsey's funeral expenses. It was also alleged that the suit was brought not only in behalf of the widow, and her estate, but in behalf of said adult children.
American Automobile Insurance Company intervened alleging that it had paid Elsie Lindsey the sum of $15,523.07 together with the sum of $500 funeral allowance as workmen's compensation payable by virtue of the death of Raymond Lindsey. Intervenor sought to recover the amount of its expenditures, together with attorneys' fees.
Lynn Van Meter, temporary administrator of the estate of Freda LaVerne Hughes, filed a defensive plea, asserting that the wife's cause of action under the Wrongful Death statute is personal to her and does not survive her death so that the administratrix was without legal authority to institute the action on behalf of the estate, or on behalf of the other beneficiaries.
The trial court sustained the plea and dismissed the suit. From this order the administratrix of the estate of Elsie Ione Lindsey appeals.
Appellant, in her primary point of error, charges that the trial court erred in sustaining the plea and dismissing the cause of action because as a matter of law any cause of action Elsie Ione Lindsey may have had under the Wrongful Death statutes during her lifetime because of the death of her husband, Raymond Lindsey, did not abate by reason of her own death, but passed to the administratrix of her estate so that such administratrix has the right and also a duty to maintain the cause of action not only on behalf of the estate of the deceased beneficiary but on behalf of other named beneficiaries under the Wrongful Death statutes.
As stated in Landers v. B. F. Goodrich Company, 369 S.W.2d 33 (Tex.Sup.1963), two separate and distinct causes of action may arise where injuries wrongfully inflicted result in death. One is the common law action for damages sustained by the decedent and his estate as a result of the injuries and death. This cause of action survives to the heirs or legal representatives of the decedent under the express provisions of art. 5525, Vernon's Tex.Rev. Civ.Stat.Ann. The other cause of action is conferred upon the surviving husband, wife, child and parents of the decedent by what is characterized as the Wrongful Death statutes, article 4671 et seq., Vernon's Tex.Rev.Civ.Stat.Ann. This second cause of action is for the damages sustained by the named beneficiaries of the decedent. No statute similar to article 5525 makes express provision for survival of the second cause of action.
Article 4675 states that such actions for damages arising from death shall be for the "sole and exclusive benefit" of and may be brought by the surviving husband, wife, children and parents of the person whose death has been caused, or by either of them, for the benefit of all. The statute expressly provides that if none of said parties commence such action within three calendar months after the death of the deceased, the "executor or administrator of the deceased" shall commence or prosecute the action unless requested by all of such parties not to do so. The amount recovered shall not be liable for the debts of the deceased. Tex.Const. art. XVI, § 26, Vernon's Ann.St.
Pursuant to article 4677 the amount of damages "so recovered shall be divided among the persons entitled to the benefit of the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict."
*586 In 1860 when the legislature first enacted the Wrongful Death statutes the articles, then numbered 2899 et seq., contained a provision:
"If the sole beneficiary dies pending the suit, and he is the only party entitled to the money recovered, the suit shall abate."
This remained in the statutes until the revision of 1925 at which time the statutes were recodified. The present Wrongful Death statutes do not contain the quoted portion of the original act. Appellant relies upon the omission of the quoted portion of the original statute together with cases from other jurisdictions.[1] Each of these cases relied upon construes statutes of other states, together with federal statutes, which do not correspond to the Texas statutes with which we are here concerned and therefore such are not authoritative in reaching a solution of the question.
Both prior to and subsequent to the recodification of the statutes in 1925 the courts of this state have consistently held that since the right of action conferred by the Wrongful Death statutes is personal and for the sole benefit of the named beneficiary that such cause of action ceases to exist upon the death of such beneficiary. Texas Loan Agency v. Fleming, 18 Tex. Civ. App. 668, 46 S.W. 63 (1898), reversed on other grounds 92 Tex. 458, 49 S.W. 1039; Gulf, C. & S. F. Ry. Co. v. Higginbotham, 173 S.W. 482 (Tex. Civ.App., Galveston 1915); and Huntington v. Walker's Austex Chili Co., 285 S.W.2d 255 (Tex.Civ.App., Waco 1956, writ ref'd). In Huntington, supra, the suit was brought by an administrator of the estate of a deceased infant seeking to recover damages for the death of the infant's parents arising out of an automobile accident. The administrator claimed that upon the death of the parents the child was vested with the cause of action under the Wrongful Death statutes for their death and that, when the child died, the Wrongful Death cause of action passed to the child's heirs and to his estate. The administrator argued that the enactment of the survival statute (art. 5525) subsequent to the enactment of the Wrongful Death statutes would necessarily cause such action to survive. The Court of Civil Appeals rejected the administrator's contention and held that the Texas Wrongful Death statutes conferred upon the survivor of a cause of action for loss of nurture, support and education by virtue of the death of his mother and father and that since this statutory cause of action was for the sole and exclusive benefit of the infant and personal to him such cause of action died with him. The court correctly pointed out that the cause of action which is made to survive by article 5525 is confined to injuries received by the injured party and does not extend to other causes of action such as is provided for in the Wrongful Death statutes. The Supreme Court, by unqualifiedly refusing a writ of error in the Huntington case, placed a stamp of approval upon such decision and we are bound to apply the rule so stated in this case.[2]
Accordingly, we hold that the cause of action pursuant to article 4671 et seq. granted to Elsie Ione Lindsey upon the *587 death of her husband ceased to exist when she died.
Appellant's contention that the administratrix of the estate of Elsie Ione Lindsey may bring the suit on behalf of the other living statutory beneficiaries of Raymond Lindsey, deceased, is without merit and is overruled. Article 4675 provides that such action may be commenced only by the "surviving husband, wife, children, and parents of the person whose death has been caused," or by one of the above beneficiaries on behalf of all, or by the executor or administrator of the "deceased." This refers to the administrator or personal representative of Raymond Lindsey and not of his wife. Thus it is clear that the administratrix of Elsie Ione Lindsey has not been clothed with statutory authority to bring the Wrongful Death action for the benefit of the children of Raymond Lindsey. As to the funeral expenses sought to be recovered these are debts and obligations owing by the estate of Raymond Lindsey, deceased, and are not a part of the recovery under the Texas Wrongful Death statutes.
Concerning the intervenor American Automobile Insurance Company, it is evident that whatever rights it possesses by virtue of the subrogation provision of the Texas workmen's compensation law, same are derivative and dependent upon a cause of action existing in the party through whom it asserts its right of recoupment. Yeary v. Hinojosa, 307 S.W.2d 325 (Tex. Civ.App., Houston 1957); Pan American Ins. Co. v. Hi-Plains Haulers, Inc., 163 Tex. 1, 350 S.W.2d 644 (1961); and Capitol Aggregates, Inc. v. Great American Ins. Co., 408 S.W.2d 922 (Tex.Sup.1966). Since Elsie Ione Lindsey's rights to recovery have ceased to exist any derivative rights possessed by the insurance company have likewise died.
The judgment of the trial court is affirmed.
NOTES
[1] Meeken v. Brooklyn Heights R. Co., 164 N.Y. 145, 58 N.E. 50 (1900); City of Shawnee v. Cheek, 41 Okl. 227, 137 P. 724 (1913); Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S. Ct. 452, 81 L. Ed. 685 (1937); Thomas' Adm'r v. Maysville Gas Co., 112 Ky. 569, 66 S.W. 398 (1902); Union Steamboat Co. v. Chaffin's Adm'rs, 204 F. 412 (7th Cir. 1913); Williams v. Hoyt, 117 Me. 61, 102 A. 703 (1917); De Marco v. Pease, 253 Mass. 499, 149 N.E. 208 (1925); Dostie v. Lewiston Crushed Stone Co., 136 Me. 284, 8 A.2d 393 (1939); and Sharp's Adm'r v. Sharp's Adm'r, 284 S.W.2d 673 (Ct.App.Ky.1955).
[2] In an excellent note in VIII Baylor Law Review at 376 (1956) Austin McCloud (now Chief Justice of the Court of Civil Appeals at Eastland) discusses the rationale of Huntington in denying survival of the cause of action expressly given by the Wrongful Death statutes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2125975/ | 487 F. Supp. 1325 (1980)
TRANSPORT INSURANCE COMPANY, Plaintiff,
v.
LEE WAY MOTOR FREIGHT, INC., Defendant.
Civ. A. No. 3-78-0306-H.
United States District Court, N. D. Texas, Dallas Division.
April 24, 1980.
*1326 John L. Lancaster, III, D. Paul Dalton Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Tex., for plaintiff.
James D. Foliart, Glen D. Huff, Foliart, Mills & Niemeyer, Oklahoma City, Okl., Royal H. Brin, John H. Hall, Strasburger & Price, Dallas, Tex., for defendant.
OPINION AND ORDER
SANDERS, District Judge.
Plaintiff Transport Insurance Company ("Transport") sues its insured, Defendant Lee Way Motor Freight, Inc. ("Lee Way"), for declaratory judgment pursuant to Title 28, United States Code § 2201 in order to determine the extent of Transport's liability under excess umbrella insurance policies that provide coverage for damages that Lee Way must pay on account of discrimination.
In a previous suit, United States v. Lee Way, Lee Way was found to have engaged in a pattern and practice of race discrimination and ordered to pay over $1.8 million in damages to individual discriminatees. In the present case Transport asks this Court to determine (1) whether the liability imposed upon Lee Way in the previous suit resulted from a single occurrence, a separate occurrence as to each of the four terminal locations involved, or a separate occurrence as to each of the individual discriminatees, (2) whether certain back-pay awards imposed upon Lee Way fell within or outside of the applicable policy coverages, and (3) whether (and how) Lee Way's costs of defending the discrimination suit should be apportioned between transport and Lee Way.
The Court finds and concludes (1) that the pattern and practice of discrimination found by the court in United States v. Lee Way constitutes "one occurrence" as that term is used in the insurance policies; (2) that back pay for the period prior to the inception of the policies on January 1, 1967, is not covered by the policies but back pay for all discriminatees after January 1, 1967, is within the policy coverage; and (3) that Lee Way's defense costs in United States v. Lee Way are fully reimbursable and should not be apportioned.
I. Background
A. United States v. Lee Way
In June of 1972, the United States filed suit against Lee Way and two labor unions, alleging that they had engaged in and were engaging in a pattern and practice of discrimination in employment. United States v. Lee Way Motor Freight, Inc., et al., W.D. Okla., Civil Action No. 72-445. Following several months of trial, the district court issued its findings and conclusions December 27, 1973, in which it found and concluded that Lee Way had engaged in a pattern and practice of employment discrimination. The court determined that Lee Way had discriminated on the grounds of race in its hiring practices and in its promotion and transfer policies, all of which operated to restrict black employees to the poorest paying and least desirable jobs.[1] The court noted that certain practices, although neutral on their face, operated to freeze the status quo of prior discriminatory practices and thus could not be lawfully maintained.
After referring the case to a special master for determination of individual entitlement to relief, the trial court entered its final judgment October 11, 1977, wherein it ordered Lee Way to pay the sum of $1,818,191.33 as damages in the form of forty-seven individual back-pay awards, ranging *1327 from $3,000 to $138,000. The judgment was appealed, and in September 1979, the Tenth Circuit Court of Appeals affirmed the district court's judgment but remanded the case for consideration of additional damages.
B. The Insurance Policies
For many years prior to the filing of United States v. Lee Way, Lee Way had purchased all its insurance coverage from Transport. In January 1967, Lee Way purchased from Transport additional insurance in the form of a series of eight excess umbrella insurance policies which afforded substantially higher limits of liability and broader coverages than the underlying Transport policies. This excess umbrella coverage (in the form of annually renewed policies) was in effect from January 1, 1967, through early 1978. The first five policies (those in effect from January 1, 1967, until mid-1972) expressly provided coverage for discrimination. However, in late August or early September 1972, Transport rewrote the umbrella policy then in effect with an endorsement excluding any future coverage for discrimination. Consequently, in this action the Court is only concerned with the five umbrella policies which were in effect from January 1, 1967, through late August or early September, 1972.
The parties have stipulated that a specimen policy (admitted into evidence) contains the language relevant to all the policies in question. The general coverage provision says that Transport will indemnify Lee Way
"for all sums which [Lee Way] shall be obligated to pay by reason of the liability imposed upon [Lee Way] by law . . . for damages, . . . on account of personal injuries . . . caused by or arising out of each occurrence happening anywhere in the world."
The term "personal injuries" is separately defined and includes discrimination as one kind of personal injury. Also defined is "occurrence":
The term "occurrence" means an accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally results in personal injury, property damage or advertising liability during the policy period. All such exposure to substantially the same general conditions existing at or emanating from one premises location shall be deemed one occurrence.
The declarations of the policies in question provide for a deductible amount to be borne by Lee Way of $25,000 per occurrence.
Thus, if Lee Way's discriminatory conduct constituted one occurrence, then Lee Way bears only one $25,000 deductible amount. If Lee Way's conduct as to each individual discriminatee constituted a separate occurrence as to each, then Lee Way must bear the first $25,000 of each back-pay award.
II. Single vs. Multiple Occurrence
The Court is unable to find another case that has addressed this precise issue. The question of what constitutes a single "accident" or "occurrence", as the terms are used within liability policies to limit an insurer's liability to a specified amount, has been addressed in numerous cases and is the subject of one annotation. 55 A.L.R. 2d 1300; see also, 8 Appleman's Insurance Law and Practice § 4891 and Long, The Law of Liability Insurance §§ 2.12-2.14. The cases indicate that a court should "examine the policies in light of the business purposes sought to be achieved by the parties and the plain meaning of the words chosen by them to effect those purposes." Champion International Corp. v. Continental Casualty Co., 546 F.2d 502, 505 (2nd Cir. 1976); see also, Union Carbide Corp. v. Travelers Indemnity Co., 399 F. Supp. 12, 17 (W.D.Pa.1975). The district court in Union Carbide v. Travelers, supra, explained that a term such as "occurrence" should be construed in the light of the hazard insured against. Id.
In this case the hazard insured against is discrimination. In the prior litigation, Lee Way was found to have engaged in a "pattern and practice" of discrimination. "Pattern and practice" actions have the following characteristics:
*1328 1. A pattern and practice of discrimination exists only where the defendant routinely follows generalized policies, procedures or practices which have a discriminatory effect. Individual instances of discrimination are not a pattern and practice. See Teamsters v. United States, 431 U.S. 324, 336, 97 S. Ct. 1843, 1855, 52 L. Ed. 2d 531 (1977); United State v. Mayton, 335 F.2d 153 (5th Cir. 1964); United State v. Dillon, 429 F.2d 800, 804 (4th Cir. 1970); United State v. Ironworkers, 443 F.2d 544, 551-552 (9th Cir. 1971); United States v. Jacksonville Terminal Co., 451 F.2d 418, 441 (5th Cir. 1971); United States v. T. I. M. E. D. C., 517 F.2d 299, 319 (5th Cir. 1975); and United States v. City of Buffalo, 457 F. Supp. 612, 620 (W.D.N.Y.1978).
2. A pattern and practice of discrimination is ordinarily proven through the use of statistics and other evidence of a general nature. Proof of individual instances of discrimination alone is not proof of a pattern and practice. See, Teamsters v. United States, supra, 431 U.S. at 339 n. 20, 97 S. Ct. at 1856; United States v. Mayton, supra; United States v. Dillon, supra, at 804; United States v. Ironworkers, supra, at 550-551; United States v. T. I. M. E. D. C., supra, at 311-313; United States v. City of Buffalo, supra, at 620, 621-622.
3. In a pattern and practice case, the cause of action belongs to the Government and not to the individuals affected. However, once the defendant's liability is established, the Government can obtain equitable relief (including back pay) for those specific individuals found to have been affected by the pattern and practice. See, Teamsters v. United States, supra, 431 U.S. at 360, 97 S. Ct. at 1867; United States v. Mayton, supra at 158; and United States v. Georgia Power Company, 474 F.2d 906 at 920-921 (5th Cir. 1973).
4. Intent to discriminate is irrelevant in a pattern and practice case. Instead, the Government must merely show that the defendant's policies, procedures or practices were not accidental or inadvertent. See, Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S. Ct. 849, 854, 28 L. Ed. 2d 158 (1971); Teamsters v. United States, supra, 431 U.S. at 349, 97 S. Ct. at 1861; and United States v. Jacksonville Terminal Co., supra, at 438, 442-443.
5. In a pattern and practice case, the defendant's policies, procedures and practices need not themselves be discriminatory. Rather, if they are facially neutral but have the effect of perpetuating past discrimination, the defendant is nevertheless liable. See, Griggs v. Duke Power Co., supra, 401 U.S. at 430, 91 S. Ct. at 853; Teamsters v. United States, supra, 431 U.S. at 349; United States v. Dillon, supra at 804; United States v. Jacksonville Terminal, supra at 938; and United States v. City of Buffalo, supra at 618.
The findings and conclusions of the district court in United States v. Lee Way indicate that these same characteristics existed at Lee Way. The court concluded that Lee Way discriminated on a "system-wide basis" (Conclusion 6) which was found to be "corporate policy" (Finding 34). The government presented statistical evidence establishing a prima facie showing of discrimination as well as evidence of individual instances serving as "examples" which "confirmed" the Court's findings of system-wide discrimination (Finding 49 and Conclusion 8). Furthermore, the court found that evidence of the company's discriminatory reputation was relevant and admissible in proving a pattern or practice of racial discrimination (Conclusion 19). The judgment established clearly that the discrimination suffered by Lee Way's minority employees resulted from a uniform, system-wide policy.[2]
*1329 When the language of the Transport policies is construed in light of the particular hazard insured against (see authorities cited supra), the inevitable conclusion is that the discrimination suffered by Lee Way's employees constituted a single "occurrence" as that term is used in the policies.
The definition of "occurrence" is broad in its scope:
The term "occurrence" means an accident or a happening or event or a continuous or repeated exposure to conditions which . . . result in personal injury . . during the policy period. All such exposure to substantially the same general conditions existing at or emanating from one premises location shall be deemed one occurrence. (emphasis added)
The first sentence of the definition standing alone indicates that the discrimination here constituted one "occurrence". Lee Way's employees were subject to a "continuous or repeated exposure to conditions," viz., company-wide discriminatory policies and practices, which resulted in "personal injury," i. e. discrimination. The prior judgment (as well as relevant case law) shows that the pattern and practice of discrimination found to have occurred consisted of generalized discriminatory policies routinely followed. Minority employees suffered a "continuous or repeated exposure" to such discriminatory conditions and thus there was only "one occurrence."
The last sentence of the quoted definition establishes clearly that the pattern and practice of discrimination constituted "one occurrence." It states, that all exposure "to substantially the same general conditions" shall be deemed "one occurrence." The individual discriminatees were exposed to the same system-wide corporate policy of discrimination, albeit at different times and places. Yet, the language is clear in its intent that all exposure to the same conditions is deemed one occurrence. These words must be given their plain meaning and not construed in a technical or limited sense. National Aviation Underwriters, Inc. v. Altus Flying Service, Inc., 555 F.2d 778 (10th Cir. 1977); Wylie v. Travelers Insurance Co., 534 P.2d 1293 (Okla.1974). It follows that all exposure to the pattern and practice of discrimination (i. e., "substantially the same general conditions") must be deemed "one occurrence."
The fact that Lee Way operated four separate trucking terminals (Oklahoma City, Los Angeles, Houston, and San Antonio) is no reason for dividing Lee Way's liability into four separate occurrences one occurrence at each of the four terminal locations. Exposure to the same general conditions "existing at or emanating from one premises location" constitutes a single "occurrence." (emphasis added) The court in United States v. Lee Way concluded that the pattern and practice of discrimination was a continuous company-wide policy traceable to the decisions and procedures made at Lee Way's headquarter's terminal in Oklahoma City. Lee Way's discriminatory policies originated in Oklahoma City and emanated from its headquarters there; the discriminatory policies thus emanated from one location; it would gild the lily to say more.
The fact that the parties provided for a "per occurrence" deductible, as opposed to a "per claim" deductible, is further indication that the parties intended that Lee Way's discriminatory practices would be deemed a single occurrence. The $25,000 deductible "per occurrence" suggests that the policy was not intended to define coverage on the basis of individual instances of discrimination. In a case involving very similar policy language, the Second Circuit affirmed a district court's holding that the continuous and repeated distribution of defective products constituted but a single "occurrence," even though there were 1400 different claims arising from individual ultimate users. Champion International Corp. v. Continental Casualty Co., 546 F.2d 502, supra. The appellate court considered the *1330 insured's selection of a "per occurrence" deduction to be important in interpreting "occurrence". Id. at 505. It regarded the insured's distribution of defective vinyl-covered paneling as one "occurrence" out of which 1400 "claims" arose. Id. at 506. In the instant case, each individual award of back pay should be regarded as a different "claim" arising out of but one "occurrence," viz., the continuous and repeated exposure to discriminatory employment conditions.
Transport could have limited the meaning and scope of discrimination to single, individual acts of discrimination and excluded from coverage a pattern and practice of discrimination; it did not do so. Discrimination is included without qualification in the definition of "personal injury," and "personal injury" is used in the expansive definition of "occurrence". In any event, any doubt regarding the extent of "discrimination" covered, must be resolved against Transport. Hardberger and Smylie v. Employers Mut. Liability Ins. Co., 444 F.2d 1318 (10th Cir. 1971) (applying Oklahoma law).
Finally, although the plain language of the policy alone supports the Court's "single occurrence" conclusion, the analogous case law also upholds this result. The rationale underlying the various decisions which have held that particular events constituted but a single occurrence has been that courts generally look to the cause as opposed to the effect of such events. The great majority of courts have adopted a "cause" analysis, American Casualty Co. v. Heary, 432 F. Supp. 995, 997 (E.D.Va.1977), holding that where a single event, process or condition results in injuries, it will be deemed a single occurrence even though the injuries may be widespread in both time and place and may affect a multitude of individuals. See generally 55 A.L.R.2d at 1303; see also, St. Paul-Mercury Indemnity Co. v. Rutland, 225 F.2d 689 (5th Cir. 1955) (derailment resulting in injury to sixteen freight cars single occurrence); Haerens v. Commercial Cas. Ins. Co., 279 P.2d 211 (Cal.App.1955) (several panes of glass broken while working on house single occurrence); Barrett v. Iowa National Mut. Ins. Co., 264 F.2d 224 (9th Cir. 1959) (fire damage to contents of different apartments single occurrence); Weissblum v. Glens Falls Ins. Co., 31 Misc. 2d 132, 219 N.Y.S.2d 711, rev'd on other grounds, 40 Misc. 2d 964, 244 N.Y.S.2d 689 (1961) (numerous lights broken at different times by different persons during construction work single occurrence); Wilkinson & Son, Inc. v. Providence, 124 N.J.Super. 466, 307 A.2d 639 (1973) (contractor damaged several apartments by tracking paint on carpets single occurrence); Union Carbide Corp. v. Travelers Indem. Co., 399 F. Supp. 12 (W.D.Pa.1975) (defective chemical product caused widespread damage to a variety of ultimate users single occurrence); Champion Intl. Corp. v. Continental Cas. Co., 546 F.2d 502 (2nd Cir. 1976) (defective vinyl-covered paneling caused widespread damage to a variety of ultimate users single occurrence); Southern Intl. Corp. v. Polyurethane Ind., Inc., 353 So. 2d 646 (Fla. App.1977) (contractor damaged several different condominiums while applying sealant to each roof single occurrence); American Cas. Co. v. Heary, 432 F. Supp. 995 (E.D.Va. 1977) (automobile accident caused chain reaction of accidents single occurrence); Michaels v. Mutual Marine Office, Inc., 472 F. Supp. 26 (S.D.N.Y.1979) (ship's deck damaged over period of days by repeated dropping of "drag buckets"single occurrence). But see Elston-Richards Storage Co. v. Indemnity Ins. Co. of North America, 194 F. Supp. 673 (W.D.Mich.1960), aff'd 291 F.2d 627 (6th Cir. 1961). The judgment in United States v. Lee Way clearly establishes that the individual discriminatees were harmed by a single, continuous cause: company-wide discriminatory employment policies.
The Court could not find any decisions of the Oklahoma appellate courts on this subject, i. e., the construction of "occurrence" in a liability policy.[3] The Court believes, however, that Oklahoma would apply the prevailing view. According to that view, *1331 the particular events involved here should be regarded as a single occurrence.[4]
III. Coverage of Back-Pay Awards
Transport argues that its coverage of the back-pay awards assessed in United States v. Lee Way is limited in two respects: (1) there is no coverage for any back-pay awards (even those falling within the policy period) resulting solely from an act occurring prior to the policy period, and (2) in any event, there is no coverage for any portion of a back-pay award for the period prior to the first issuance of the relevant policies (January 1, 1967). (Transport does not question its liability for damages occurring after the policy period; such liability is specifically covered under condition C of the applicable policies).
This Court having now determined that the discrimination by Lee Way was "one occurrence" under the policies, the short answer to Transport's first argument is to be found in Champion v. Continental Casualty Co., 546 F.2d 502, supra, (1400 claims arising out of a single occurrence) as well as the other cases above cited which reflect a single occurrence and multiple claims.
It is not necessary that the wrongful conduct occurred during the policy period; it is only necessary that actual damage result during the policy period. The recognized principle is stated in 57 A.L.R. 2d 1379, at 1389:
It appears to be well settled that the time of the occurrence of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed but the time when the complaining party was actually damaged. (citations omitted)
This is consistent with the policy definition of "occurrence" which only requires that the injury result during the policy period. As shown above, the individual discriminatees were actually damaged (i. e., were denied certain rights) as long as Lee Way maintained its discriminatory employment policies. The injuries continued during the policy period, even in those instances where an act of discrimination occurred prior to the policy period. Consequently, all back-pay awards, regardless of date of discrimination, from and after January 1, 1967, are covered by Transport's policies.
Transport's second contention that no coverage is provided for back pay awarded for the period prior to January 1, 1967 is more difficult. The policies simply state that coverage is limited to injuries occurring during the policy period.
Lee Way argues that if an event causes any injury during the policy period, then it is an "occurrence", and all "ultimate net loss" (a term defined by the policy) from that occurrence is covered, including damages which precede the policy period. The term "ultimate net loss" is defined as "the total sum which the insured . . . become[s] obligated to pay by reason of personal injury . . . paid as a consequence of any occurrence covered hereunder . . .." (emphasis added). Lee Way recognizes that "occurrence" is limited to an event which results in personal injury "during the policy period," but contends that such language is no limitation on coverage. Lee Way relies on a line of cases which stand for the proposition that if an event insured against is in progress when the insurance terminates, the entire loss caused thereby is coverable. See, e. g. Pruitt v. Hardware Dealers Mut. Fire Ins. Co., 112 F.2d 140 (5th Cir. 1940); Rochester *1332 German Ins. Co. v. Peaslee-Gaulbert Co., 120 Ky. 752, 87 S.W. 1115 (1905). These cases are inapposite. Here, the injuries preceded issuance of the policies and continued into the policy period, rather than succeeding the termination of the insurance. Lee Way's interpretation of the policies' coverage provisions ignores the clear language of the policies.
In sum, the Transport policies covering discrimination were issued on January 1, 1967, and provided coverage for damages which accrued during and after, but not before the policy period. Transport's liability for back-pay damages is therefore limited to awards and portions of awards accruing from and after January 1, 1967.
IV. Apportionment of Defense Costs
Finally, Transport argues that the costs of defending the discrimination suit should be apportioned between Transport and Lee Way, since Lee Way was essentially a self-insurer prior to January 1, 1967. Transport suggests either of two methods: (1) apportionment according to the number of years which Lee Way and Transport respectively provided self-insurance or insurance, or (2) apportionment according to the fraction of the total damages awarded for each is responsible in the light of this opinion.
Lee Way counters that apportionment of its defense costs is not feasible and that, in any case, such costs should be fully reimbursed by Transport. Lee Way argues that the bulk of its defense costs were incurred in defending the liability phase of the Government's pattern and practice suit, and that those costs simply cannot be allocated among separate claimants or time periods. Lee Way further argues that its defense costs in the relief phase of the litigation related to general matters such as disputes regarding computation of back pay and claims by individuals who were not awarded relief by the special master or the court and are not susceptible to apportionment.
The Court agrees with Lee Way. Neither method of apportionment proposed by Transport seems practicable or justified. The reasons for apportionment of defense costs present in Insurance Company of North America v. Forty-eight Insulations, Inc., 451 F. Supp. 1230 (E.D.Mich.1978) are not present here. The Court accordingly concludes that Transport is liable for the full amount of defense costs sustained by Lee Way in defending United States v. Lee Way.
In sum, the Court finds and concludes: (1) that the liability imposed upon Lee Way in United States v. Lee Way represents a single "occurrence", as that term is used in Transport's excess umbrella policies; (2) that the subject policies provide coverage for all back pay for the period after January 1, 1967; and (3) that the subject policies provide coverage for the full amount of defense costs incurred by Lee Way in defending United States v. Lee Way.
Counsel for Lee Way will promptly prepare and submit to the Court a judgment in accordance with this Opinion.
SO ORDERED.
NOTES
[1] The Court found that Lee Way discriminated against blacks in hiring and job placement and specifically found that Lee Way's no-transfer policy which was neutral in its face operated discriminatorily. (Findings 34-37 and Conclusions 9-11). It was company policy that no employee would transfer between job classifications covered by different bargaining units. The policy's effect "froze" blacks into menial and lower-paying positions which they traditionally had held and prevented placement in more desirable higher-paying jobs. Even though this policy had been found to be unlawful in Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), Lee Way had continued to enforce a similar policy which provided that anyone who transferred could not carry over his seniority for bidding and lay-off purposes. It, too, was found to be unlawful by the district court (Conclusion 10).
[2] Having established Lee Way's liability for a pattern and practice of discrimination, the court then considered each individual discriminatee's entitlement to relief. Not until the relief phase of the trial did the court delve deeply into individual claims. At that stage, individual employees were not required to prove specific acts of discrimination; the burden shifted to Lee Way to prove in each instance that an individual was not affected by the pattern and practice of discrimination, and, if Lee Way failed, the individual would be deemed entitled to relief. (Tenth Circuit Slip Opinion at 32-33).
[3] The Court previously determined, and the parties agreed, that Oklahoma law applies.
[4] The insurance industry has been broadening the definition of occurrence. An October 1972 F.C. & S. Bulletin, published by the National Underwriters Co., stated at page A-3 that the "continuous or repeated exposure to conditions" language in the definition of occurrence was intended to avoid the application of multiple occurrences. This language represented a change from previous wording that had been interpreted less expansively. The Federation of Insurance Counsel published an article in its Spring, 1975, F.I.C. Quarterly analyzing the same definition of occurrence as used in the Transport policies. The article explains at page 245 that the definition is intended to result in only a single application of the occurrence limit in repeated exposure cases. Clearly the insurance industry has intended to broaden, rather than shrink, the definition of occurrence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2428635/ | 975 S.W.2d 329 (1998)
Charles FOUST, Bobby R. McDaniel, Bobby McDaniel, Robert E. McDaniel, and James E. McDaniel, Appellants,
v.
RANGER INSURANCE COMPANY, Appellee.
No. 04-97-00714-CV.
Court of Appeals of Texas, San Antonio.
February 27, 1998.
Rehearing Overruled March 27, 1998.
*330 Adolfo E. Cordova, Jr., Crane & Cordova, San Benito, for Appellants.
Kevin W. Vice, Lewis R. Sifford, Sifford & Anderson, L.L.P., Dallas, Ron A. Sprague, Gendry & Sprague, P.C., San Antonio, for Appellee.
Before STONE, GREEN and ANGELINI, JJ.
OPINION
ANGELINI, Justice.
This is an appeal from the award of summary judgment in a declaratory judgment action brought by the appellee insurance company. The case involves chemical damage to the appellants' cotton crop which occurred when an adjoining field was being sprayed with herbicide. The insurance company insured the owner/operator of the crop dusting company that applied the herbicide. The trial court entered a declaratory judgment, finding that the damages alleged were the result of a single occurrence. In two points of error, the appellants contend that the trial court lacked jurisdiction to enter the declaratory judgment and that the trial court erred in holding that only one occurrence was the cause of the appellants' damages. We affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants, Charles Foust, Bobby R. McDaniel, Bobby McDaniel, Robert E. McDaniel, and James E. McDaniel (the McDaniels), are individuals who engage in farming and ranching operations in and around Kinney County, Texas. In 1994, the *331 McDaniels had a cotton crop growing on various tracts of land, several of which abutted land owned and farmed by Walters Farms.
In May of 1994, Walters Farms retained the services of Russell Lindeman d/b/a Rusty's Flying Services (Lindeman) to aerially apply a herbicide to the milo crop on Walters Farms property. The herbicide that was to be applied is dangerous to cotton. Lindeman applied the herbicide with a crop dusting airplane on May 14, 1994. During the aerial application, some of the herbicide drifted from the target area onto various tracts of land being farmed by the McDaniels. The herbicide caused severe damage to the McDaniels's cotton crop, greatly reducing the cotton yield. The McDaniels sued Lindeman, a representative of Walters Farms, and the manufacturer of the herbicide for loss of income they suffered as a result of their damaged cotton crop (Underlying Litigation).
In February of 1994, appellee, Ranger Insurance Company (Ranger), issued to Lindeman an aircraft insurance policy which covered claims resulting from the aerial application of chemicals and seeds in connection with Lindeman's business. The limits of liability under the policy are $100,000 per occurrence and $200,000 per policy period. After being notified of the Underlying Litigation, Lindeman requested coverage from Ranger. Ranger acknowledged Lindeman's claim and employed counsel to represent Lindeman in the Underlying Litigation.
During settlement negotiations between Ranger and the McDaniels, a dispute arose regarding whether the damage at issue was caused by a single occurrence or by multiple occurrences under the terms of the policy. Ranger filed this declaratory judgment action, asking the trial court to determine that Lindeman's alleged conduct constituted a single occurrence and, accordingly, the limit of Ranger's liability under the policy is $100,000. The McDaniels filed a motion to dismiss the declaratory judgment action for lack of jurisdiction and Ranger filed a motion for summary judgment. The trial court denied the McDaniels's motion to dismiss and granted Ranger's motion for summary judgment, finding, as a matter of law, that Lindeman's application of the herbicide on May 14, 1997, amounted to a single occurrence under the terms of the Ranger policy.
ARGUMENT AND AUTHORITY
A. Jurisdiction
In their first point of error, the McDaniels contends that the trial court erred in denying their motion to dismiss the declaratory judgment action for lack of jurisdiction. Specifically, the McDaniels claim that the relief sought and obtained by Ranger via its declaratory judgment action was an advisory opinion regarding Ranger's liability in a case that had yet to be tried. The Uniform Declaratory Judgment Act sets limits on the subject matter of declaratory judgment actions as follows:
A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
TEX. CIV. PRAC. & REM.CODE ANN. § 37.004 (Vernon 1997). Accordingly, the Uniform Declaratory Judgment Act operates to provide an individual whose rights and legal relations are at issue in a contractual dispute a vehicle by which he can solicit the court to resolve questions of construction or validity under the contract. Nat'l County Mut. Fire Ins. Co. v. Johnson, 829 S.W.2d 322, 324 (Tex.App.Austin 1992), aff'd, 879 S.W.2d 1 (Tex.1993).
However, the Act does not empower the courts to render advisory opinions. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780, 781 (Tex.1960). The courts may not review hypothetical or contingent situations, or determine questions not currently essential to the decision of an actual controversy. Firemen's Ins. Co. of Newark v. Burch, 442 S.W.2d 331, 333 (Tex.1968). Specifically, any judgment attempting to declare the liability *332 of an insurance company relating to damages that might be assessed against the insured in an underlying case is advisory and beyond the power and jurisdiction of the trial court to render. Id. at 332-33; see J.E.M. v. Fidelity & Cas. Co. of New York, 928 S.W.2d 668, 671-72 (Tex.App.Houston [1st Dist.] 1996, no writ) (following Burch).[1]
In the present case, the McDaniels contend that the declaratory judgment at issue established Ranger's liability under the insurance policy because, by declaring that Lindeman's actions constituted only a single occurrence, the court determined that Ranger was only obligated to indemnify Lindeman up to $100,000 for any judgment that might be rendered against him in the Underlying Litigation. Because liability has yet to be established against Lindeman, the McDaniels contend that the trial court's judgment declaring Ranger's liability under the policy is based upon a hypothetical and is, therefore, purely advisory in nature.
Ranger argues that the declaratory judgment action at issue does not involve Ranger's duty to indemnify Lindeman, but that the issue to be decided is Ranger's duty to defend Lindeman. Ranger contends that the question in this case is Ranger's duty to defend because the trial court's decision affected whether the "tender and walk"[2] provision of the insurance policy would be triggered by any offer made by Ranger to settle for $100,000. According to Ranger, because the court's declaration in this case determined the extent of Ranger's duty to defend, it affected the rights, status, and legal relationship between the parties, and therefore, addressed a justiciable controversy. See Burch, 442 S.W.2d at 332 (holding "the question of [an] insurance company's duty to defend present[s] a justiciable issue."); J.E.M., 928 S.W.2d at 671 (stating "whether an insurer has a duty to defend presents a justiciable question suitable for a declaratory judgment action."); Johnson, 829 S.W.2d at 324 (noting that the existence of an insurer's duty to provide a defense under an insurance policy is an appropriate question to be determined in a declaratory judgment action).
The declaratory judgment at issue here simply states, "the alleged conduct of the insured constitutes only one occurrence under Ranger Insurance Company Policy No. AG60358." If Lindeman's conduct constitutes only one occurrence under the terms of the policy, the limit of Ranger's liability under the policy is $100,000. In light of the "tender and walk" provision in the policy, we agree with Ranger that the trial court's determination necessarily resolved any question regarding the extent of Ranger's duty to defend Lindeman. It does not however, resolve any question or make a determination regarding Ranger's duty to indemnify Lindeman. The judgment does not state that Ranger will have to pay Lindeman the limits of the policy, it simply defines those limits. Further, there is no need for there to be a determination of liability in the underlying suit before a determination can be made regarding whether the terms of the insurance policy at issue contemplate a single occurrence or multiple occurrences when a crop dusting airplane makes several passes over a target area and stops to reload while performing a job. Therefore, the resolution of the issue in this case is not based on hypotheticals or contingencies.
Accordingly, and by the very terms of the Uniform Declaratory Judgment Act, *333 whether the facts of this case involve one or many occurrences under the terms of the contract presents a justiciable question suitable for declaratory judgment action. See Gonzalez v. Mission American Ins. Co., 795 S.W.2d 734, 735 (Tex.1990) (reviewing declaratory judgment which determined policy limits under an insurance contract); Preferred Risk Mut. Ins. Co. v. Watson, 937 S.W.2d 148, 148 (Tex.App.Fort Worth 1997, writ denied) (reviewing declaratory judgment involving determination of whether facts of case constituted a single occurrence under terms of insurance policy). The trial court's judgment clarified the rights of the parties under the contract, and therefore, the trial court did not err in denying the McDaniels's motion to dismiss the declaratory judgment action for lack of jurisdiction. The McDaniels's first point of error is overruled.
B. Number of Occurrences
In their second point of error, the McDaniels contend that the trial court erred in finding, as a matter of law, that their damages were caused by only one occurrence. The insurance policy at issue provides that Ranger will indemnify Lindeman up to $100,000 per occurrence and up to $200,000 per policy period for any property damage resulting from the aerial application of chemicals and seeds during the policy period. The insurance contract defines occurrence as follows:
Occurrence means a sudden event or repeated exposure to conditions involving the aircraft during the policy period, neither expected or intended by [Lindeman], that causes bodily injury or property damage to others during the policy period. All bodily injury or property damage resulting from the same general conditions will be considered to be caused by one occurrence. (emphasis added)
Ranger argues that the property damage suffered by the McDaniels when Lindeman applied herbicide to Walters Farms' property was a result of repeated exposure to the same general conditions, and was, therefore, caused by a single occurrence under the terms of the policy. The summary judgment evidence, consisting of responses to requests for admission and deposition excerpts, indicates the following:
Lindeman applied herbicide to the target field pursuant to his obligation under a contract between himself and Walters Farms which provided that Lindeman would be paid a sum certain for crop dusting certain tracts of Walters Farms' property with a herbicide purchased by Walters Farms.
Lindeman considered the application of the herbicide to be a single event.
The entire application was done with one plane and took less than three hours. During those three hours, there was some variation in the air temperature. There also may have been some variation in wind direction and velocity.
Lindeman made numerous passes over the target field. The chemical delivery system was activated with each pass and deactivated after each pass. During each pass, the altitude at which the plane flew differed.
It was necessary for Lindeman to land the plane more than one time during the application process in order to reload it with herbicide.
The application of the herbicide affected crops in more than one field.
The McDaniels contend that the trial court erred in finding that the damages resulted from repeated exposure to the same general conditions because the evidence establishes that the conditions during the application process were constantly changing. Specifically, the McDaniels note that the application of the herbicide occurred over the course of three hours, that the plane's altitude varied, and that the temperature and wind changed. Further, the plane landed and reloaded several times. The McDaniels argue that the time it took for the plane to reload allowed the previously released herbicide to dissipate. Therefore, according to the McDaniels, each return to the sky created a new cloud of damaging herbicide and a separate condition. The McDaniels contend that, because the insurance policy requires a single occurrence to result from "the same general conditions," a finding of a single occurrence cannot be supported under these facts.
*334 The McDaniels rely on American Indem. Co. v. McQuaig, 435 So. 2d 414 (Fla.Dist.Ct. App.1983). In that case, a homeowner fired three random shots from a shotgun, injuring two police officers. In addressing whether the homeowner's action constituted one or more occurrences, the court held that each individual blast was the cause of an injury, and therefore, there were three occurrences. Id. at 415-16. An identical question was recently addressed in Texas. In State Farm Lloyds, Inc., et. al v. Williams, 960 S.W.2d 781 (Tex.App.Dallas 1997, writ filed), the insured shot his wife, her daughter, and her granddaughter before shooting himself. The court held that the injuries sustained resulted from separate gunshots, each giving rise to liability; therefore, there were multiple occurrences under the policy.[3]Id. at 783. The McDaniels analogize this type of situation to the case at hand by claiming that each "blast" of herbicide Lindeman administered was a separate cause of injury.
Williams is distinguishable from this case, however, because the insurance policy at issue in Williams did not define the term "occurrence." Accordingly, the court held that the term was ambiguous and construed it in favor of the insured. See id. (citing Gonzalez, 795 S.W.2d at 737). In this case, the policy at issue clearly defines the term occurrence to be either "a sudden event" or "repeated exposure to [the same general] conditions." Other courts have been faced with the task of construing insurance policies containing virtually identical definitions of "occurrence." In Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 (3rd Cir. 1982), the court analyzed the following definition of the term "occurrence":
The term "occurrence" means an accident or a happening or event or a continuous or repeated exposure to conditions which ... results in ... personal injury, property damage, or advertising liability during the policy period. All such exposure to substantially the same general conditions existing at or emanating from one premises location shall be deemed one occurrence.
Id. at 59. In Appalachian, the court held that a discriminatory employment policy did not result in a new occurrence each time an employee was discriminated against. Id. at 61. Instead, the company's adoption of the discriminatory policy constituted a single occurrence because each injury stemmed form the same conditionthe policy. Id.
In Transport Ins. Co. v. Lee Way Motor Freight, Inc., 487 F. Supp. 1325 (N.D.Tex. 1980), the court construed an insurance policy containing a definition of occurrence identical to the definition addressed by the Appalachian court. Particularly, the policy provided that "[a]ll such exposure to substantially the same general conditions ... shall be deemed one occurrence." Id. at 1329. The court in Lee Way was asked to determine whether a company's pattern of employment discrimination constituted a single occurrence under the terms of the policy. The court noted that, while each claimant was exposed to the same policy of discrimination at a different time and place, the language of the policy is clear in its intent that all exposure to the same condition is deemed one occurrence. Id. Therefore, the court held that the pattern and practice of discrimination created substantially the same general conditions, and that exposure to the discrimination must, therefore, be deemed one occurrence. Id.
The "same general conditions" provision seems to be the controlling factor in Appalachian, Lee Way and similar cases, as at least one Texas state court has acknowledged. In Cullen/Frost Bank of Dallas v. Commonwealth Lloyd's Ins. Co., 852 S.W.2d 252 (Tex. App.Dallas 1993, writ denied), the court held that there were multiple occurrences where damages arose from the sale of several condominiums. The insurer in that case relied on Appalachian and other cases involving "same general conditions" provisions. However, the insurance policy at issue did not involve such a provision. It is on this *335 basis that the Cullen/Frost court distinguished Appalachian and similar cases. The court held that "[t]he policies arising out of these ... cases provided that all damages arising out of exposure to substantially the same general conditions were considered as arising out of one occurrence.... In contrast, the policies at issue here do not provide that all exposure to the same condition constitutes a single occurrence. Thus, our policies do not, by their terms, prevent there being multiple occurrences." Id. at 257.
The holding in Cullen/Frost seems to indicate that where a policy contains a provision that all injury or damage resulting from the same general conditions shall be considered to be caused by one occurrence, the terms of such provision should be strictly construed. As the court in Lee Way noted, "these words must be given their plain meaning and not construed in a technical or limited sense." Lee Way, 487 F.Supp. at 1329.
The court's holding in Uniroyal, Inc. v. Home Ins. Co., 707 F. Supp. 1368 (E.D.N.Y. 1988), is instructive. In Uniroyal, the court addressed whether 110 separate deliveries of Agent Orange to the United States Air Force in Vietnam constituted one occurrence under the manufacturer's insurance policy. The court held that the number of deliveries was "happenstance," determined by the size of the available transport vehicles. Id. at 1383. Reasoning that the deliveries were all part of a routinized, repetitive process, the court determined that the damages at issue resulted from one continuous or repeated exposure to conditions. Id. Similarly, in this case, the fact that Lindeman was forced to land so that he could reload herbicide was "happenstance," determined by the size of the plane's tanks and by the amount of acreage he was contracted to spray.
We conclude that the damage to the McDaniels's cotton crop resulted from repeated exposure to the same general conditionsthe drift of a herbicide which was being applied to crops on adjoining property on May 14, 1994. The McDaniels argue that the application of the herbicide in this case does not fall under the "same general conditions" provision because conditions, such as temperature, wind, and altitude, were constantly changing during the application process. However, these changes are specific and incidental. They can not, therefore, be relied upon as evidence that the application of the herbicide on May 14, 1994, did not occur under the same general conditions. Likewise, a new occurrence did not result each time Lindeman returned to the air after landing the plane to reload it with herbicide. Rather, each pass resulted in the creation of the same general conditions.
The herbicide was applied one time, in a process that required several passes over various tracts of land. The application process constituted a single procedure, and it is this procedure as a whole that caused the damage to the McDaniels's cotton crop. In other words, the process of applying herbicide to Walters Farms' property created the "general condition" which damaged the McDaniels's cotton. Accordingly, the damage was the result of a single occurrence under the terms of the Ranger policy at issue. The McDaniels's second point of error is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] We note that the Texas Supreme Court recently carved out an exception to the Burch rule in Farmers Texas County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81 (Tex.1997). However, the Griffinholding does not, as Ranger suggests, overrule Burch. In Griffin, the court held that "the duty to indemnify is justiciable before the insured's liability is determined in the liability lawsuit when the insurer has no duty to defend and the same reasons that negate the duty to defend likewise negate any possibility the insurer will ever have a duty to indemnify." Id. at 84 (emphasis in original). The Griffinexception does not apply in this case because Ranger has an uncontested duty to defend Lindeman in the Underlying Litigation.
[2] The insurance policy at issue contains a provision that operates to absolve Ranger of its duty to defend Lindeman if Ranger has tendered the limits of liability under the policy. Specifically, the provision provides that Ranger will defend Lindeman against any claim or legal action brought against him resulting from a covered occurrence "as long as [Ranger] has not paid, offered to pay, or tendered the limits of liability" purchased by Lindeman.
[3] The court in Williams relied on Maurice Pincoffs Co. v. St. Paul Fire & Marine Ins. Co., 447 F.2d 204, 207 (5 th Cir.1971), which held that multiple sales of contaminated birdseed resulted in multiple occurrences under an insurance policy, despite the fact that the birdseed was contaminated on only one occasion, because liability arose from the sale of the seed not from its contamination. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1786799/ | 797 So. 2d 973 (2001)
Cindy WALLS
v.
FRANKLIN CORPORATION and Employers Insurance of Wausau, a Mutual Company.
No. 1999-CT-01092-SCT.
Supreme Court of Mississippi.
October 11, 2001.
Roy O. Parker, Tupelo, Attorney for Appellant.
Jackson H. Ables, III, Jackson, Attorney for Appellee.
EN BANC.
ON WRIT OF CERTIORARI
PITTMAN, Chief Justice, for the Court:
¶ 1. This appeal presents the question of whether an injured worker, entitled to *974 reasonable and necessary medical services and supplies under our Workers' Compensation Law, may incur such expenses without first having the Workers' Compensation Commission determine their reasonableness and necessity. The answer to this question in turn reveals whether the worker may maintain a civil action against her employer and its workers' compensation insurer for bad faith refusal to provide benefits without the Commission having made such a determination. In this case the circuit court dismissed the worker's bad faith suit for failure to submit the question of reasonableness and necessity of the expenses in question to the Commission. The Court of Appeals reversed and remanded. This Court granted certiorari to consider this question of first impression. After due consideration we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.
I.
¶ 2. Cindy Walls injured her back while employed with the Franklin Corporation in October of 1984. Employers Insurance of Wausau was Franklin's workers' compensation carrier. Walls was sent to Dr. William Brown for treatment in February of 1985. Dr. Brown performed a chemonucleolysis procedure at the L4-5 level. In 1986, Walls was treated by Dr. Thomas Turner, who performed a partial laminectomy at L-4 and a fusion. Dr. Turner released Walls in May of 1990 with a 20% physical impairment rating. In 1992 an administrative law judge of the Mississippi Workers' Compensation Commission ordered that Franklin Corporation and Wausau pay temporary total disability benefits, permanent partial disability benefits, and "pay for, furnish and provide ... all reasonable and necessary medical services and supplies as the nature of her injury or the process of her recovery may require as provided in Mississippi Code Annotated Section 71-3-15 (1972)." Apparently there were further proceedings on Walls's case before the Workers' Compensation Commission, but any subsequent history in this record is only found in pleadings or argument of counsel, and not opinions or orders of the Commission.
¶ 3. Walls alleges that from 1993 to 1996 she submitted her bills directly to Wausau and established some kind of relationship with Sylvia, one of the adjusters who approved most of Walls's prescriptions. A review of the record reveals one letter from Walls to someone named Sylvia.
¶ 4. On October 8, 1996, Alan Daigrepont, claim supervisor at Wausau, notified one of Walls's doctors by letter that Wausau was no longer responsible for her continued medical care, as her "claim [had] been dismissed by the Mississippi Workers' Compensation Commission for lack of prosecution on the part of the patient."
¶ 5. It is further alleged that Walls received several prescriptions for special shoes over the course of her treatment as well as a gym set, but this Court cannot find any verification of this in the record other than in argument of counsel.
¶ 6. By prescription dated October 24, 1996, Dr. J. Patrick Barrett prescribed whirlpool baths two to three time per week for Walls. Walls proceeded to have a whirlpool bath installed in her home at a cost of $2,433.18. The one letter from Walls to Sylvia found in this record, dated December 11, 1996, states: "While out getting this all together and trying to find the best deal, I failed to keep up with the mileage so there won't be any on this." This letter apparently refers to Walls's building the whirlpool in her home. There are six separate reimbursement checks in the record from Wausau to Walls for travel expenses during 1996.
*975 ¶ 7. By letter dated November 13, 1996, Daigrepont notified Walls that Wausau would no longer be responsible for her "continued medical care as [her] claim [had] been settled without an open ended medical clause." In an affidavit submitted by Daigrepont in federal court, he stated that he had exclusively handled Walls's claims for benefits for Wausau until June 1997, and stated that he had no knowledge of Walls's demand for reimbursement for shoes, and that Walls failed to first notify Wausau before having the whirlpool bath installed.
¶ 8. By June of 1997, Walls still had not been reimbursed for the shoes or the whirlpool bath. She demanded payment of the outstanding medical expenses several times, and no response or payment was made. In September 1997, Walls filed a complaint in the Chickasaw County Circuit Court alleging bad faith refusal to pay medical benefits. Franklin removed the case to federal court, which subsequently remanded the case to the circuit court. Franklin then filed a motion asking that the Workers' Compensation Commission determine the reasonableness and necessity of Walls's medical treatment. Walls asked that this motion be dismissed. The Commission held these motions in abeyance pending a determination of jurisdiction by the circuit court.
¶ 9. Franklin Corporation then filed a Motion to Dismiss or Stay and for Protective Order in the circuit court. The circuit court found that Walls had failed to first exhaust her remedies under the Workers' Compensation Act, and dismissed her suit in May 1999. The circuit court specifically found that "exhaustion of the administrative remedial process is a mandatory condition precedent to the maintaining of a `bad faith' suit for an allegedly wrongful denial of any workers compensation benefits."
¶ 10. Walls appealed from this judgment. The Court of Appeals, in a 6-4 decision, reversed and remanded. Walls v. Franklin Corp., No.1999-CA-01092 COA (Miss.Ct.App.1999). It found that the Workers' Compensation Commission had "fully adjudicated" the issue of payment and expenses and Franklin's refusal to pay for shoes or a whirlpool bathtub for Cindy's home could amount to bad faith.
¶ 11. The dissent found that the Workers' Compensation Commission had not adjudicated whether the medical services in question were reasonable and necessary, and Walls was therefore required to have this determined by the Commission before filing any bad faith claim.
II.
¶ 12. The question presented in this appeal has not been addressed previously by this Court. In Southern Farm Bureau Cas. Ins. Co. v. Holland, 469 So. 2d 55 (Miss.1984), Holland was injured in October 1977, and had back surgery in December 1977. Farm Bureau paid medical bills and temporary total benefits until July 1979, when it stopped. The Workers' Compensation Commission ordered in September 1981 that Farm Bureau continue temporary total benefits. Holland subsequently filed her bad faith suit.
¶ 13. In Luckett v. Mississippi Wood Inc., 481 So. 2d 288 (Miss.1985), Luckett was injured in October 1981. Luckett alleged that his employer did not file a notice of his injury with the Workers' Compensation Commission until June or July of 1982, and refused to pay benefits. Luckett filed a motion to controvert in May 1982. The opinion does not say when Luckett filed his bad faith suit.
¶ 14. In McCain v. Northwestern National Ins. Co., 484 So. 2d 1001 (Miss.1986), McCain alleged that he and the carrier *976 had settled but the carrier had violated the settlement. In Leathers v. Aetna Cas. & Sur. Co., 500 So. 2d 451 (Miss.1986), the dispute over benefits between Leathers and Aetna had been decided in Leathers's favor by the Workers' Compensation Commission, the circuit court and this Court, but Aetna still had not paid.
¶ 15. In all these cases this Court found that the worker's bad faith suit was a viable cause of action. In none of these case did this Court require that the worker first exhaust administrative remedies under the Workers' Compensation Act, though it appears that this was done in Holland and Leathers, and may have been done in other cases.
¶ 16. Franklin cites two federal court cases, Kitchens v. Liberty Mut. Ins. Co., 659 F. Supp. 467 (S.D.Miss.1987), and Powers v. Travelers Ins. Co., 664 F. Supp. 252 (S.D.Miss.1987). Both these federal district courts made a guess pursuant to Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), that this Court would find that a workers' compensation claimant would first have to establish his entitlement to benefits through the administrative process before pursuing a bad faith suit. Both these cases specifically relied on this Court's decision in McCain, 484 So.2d at 1002, where we found, in bad faith cases, that "[a] prerequisite to the award of punitive damages is the determination that the plaintiff is entitled to contractual damages." Both courts found that entitlement to compensation was the same legal issue decided by the administrative fact finder under the Workers' Compensation Act and the trier of fact in a bad faith tort action.
¶ 17. Walls's bad faith claim is in turn based on the question of whether the whirlpool and shoes are "reasonable and necessary medical services and supplies" as required under the administrative law judge's 1992 order, and as required under Miss.Code Ann. § 71-3-15 (2000). Section 71-3-15 states in part:
(1) The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require.
. . . .
(3) In carrying out this section, the commission shall establish an appropriate medical provider fee schedule, medical cost containment system and utilization review which incorporates one or more medical review panels to determine the reasonableness of charges and the necessity for the services, and limitations on fees to be charged by medical providers for testimony and copying or completion of records and reports and other provisions which, at the discretion of the commission, are necessary to encompass a complete medical cost containment program.... Any dispute over the amount charged for service rendered under the provisions of this chapter, or over the amount of reimbursement for services rendered under the provisions of this chapter, shall be limited to and resolved between the provider and the employer or carrier in accordance with the fee dispute resolution procedures adopted by the commission.
. . . .
¶ 18. Section 71-3-15 requires that disputes over what is reasonable and necessary should be resolved through the Commission's procedures. Miss.Code Ann. § 71-3-53 (2000) adds that the Commission has continuing jurisdiction to "review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation." *977 Based on this Court's decision in McCain, and on the Workers' Compensation Commission's continuing jurisdiction over such cases as provided by statute, we find that Walls could not maintain a bad faith action for refusal to pay for disputed medical services and supplies absent the Commission's prior determination that those services and supplies were reasonable and necessary. We therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the Chickasaw County Circuit Court.
¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.
BANKS, P.J., SMITH, MILLS, WALLER AND COBB, JJ., CONCUR. McRAE, P.J., DIAZ AND EASLEY, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1859442/ | 634 So. 2d 950 (1994)
Terri LANGLEY, et al., Plaintiffs-Appellants,
v.
OXFORD CHEMICALS, INC., et al., Defendants-Appellees.
No. 25596-CA.
Court of Appeal of Louisiana, Second Circuit.
March 30, 1994.
Iverson, Amman & Wood by B.G. Iverson, Monroe, for appellants.
Hayes, Harkey, Smith, Cascio & Mullens by Thomas M. Hayes, III, Monroe, for appellee, Van Blarcom Enclosures, Inc.
Hudson, Potts & Bernstein by Brady D. King, II, Monroe, for appellee, Package Supply and Equipment.
Hulse, Nelson & Wanek by Gwendolyn Hebert, New Orleans, for appellee, Oxford Chemicals, Inc.
Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for appellee, Inmark, Inc.
*951 Before SEXTON, WILLIAMS and PRICE (ad hoc), JJ.
WILLIAMS, Judge.
Plaintiffs appeal a trial court's judgment dismissing their suit against the defendant Package Supply & Equipment Co. (Package Supply) on an exception of lack of personal jurisdiction. We affirm.
FACTS
The defendant, Package Supply is a South Carolina corporation, with its principal place of business in South Carolina. Package Supply has sales offices in Charlotte, North Carolina; Cincinnati, Ohio; Nashville, Tennessee; and Atlanta, Georgia. It has salespersons located in Orlando, Florida and near Raleigh-Durham, North Carolina.
Package Supply is one of the distributors of packaging equipment, including child-resistant bottle closures, to Oxford Chemicals, Inc. (Oxford), the manufacturer of Clear-Line Drain Cleaner.[1] Oxford is a Delaware corporation, licensed to do business in this state, with its principal place of business in Orleans Parish. In the mid 1980's, Package Supply delivered at least 800,000 bottle caps manufactured by Van Blarcom Closures, Inc. (Van Blarcom) to Oxford at Oxford's facility in Atlanta, Georgia.
On June 24, 1986, LaDonna Marie Frith, a four-year-old child residing in West Monroe, Louisiana, was severely injured when she and another child allegedly opened a bottle of Oxford's sulfuric acid and spilled it on several parts of her body.
Plaintiffs sued several defendants including Oxford, Package Supply, InMark, Inc., a Georgia corporation that also supplied bottle caps[2] to Oxford, and Van Blarcom, the manufacturer of the bottle cap.
On September 18, 1992, Package Supply filed a declinatory exception of lack of personal jurisdiction. The trial court sustained the defendant's exception and dismissed the suit against Package Supply.[3] Plaintiffs appeal.
DISCUSSION
The sole issue presented for our resolution is whether the Louisiana court has jurisdiction over the defendant, Package Supply.
Plaintiffs contend the trial court can exercise personal jurisdiction over Package Supply pursuant to LSA-R.S. 13:3201(A)(4) or 3201(A)(8).[4]
The Louisiana legislature has adopted Act 1987, No. 418, effective September 1, 1987 to amend LSA-R.S. 13:3201 and add Subsection B,[5] which changed the analysis process in determining whether a state court could assert personal jurisdiction over a nonresident:
In addition to the provisions of Subsection A, a court of this state may exercise personal *952 jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.
Under this section, there is no longer a requirement that a state statute provide authority for the court to exercise personal jurisdiction over the nonresident in the particular litigation.
In Superior Supply v. Assoc. Pipe & Supply, 515 So. 2d 790 (La.1987), the Louisiana Supreme Court explained the appropriate analysis to determine whether a state court's exercise of personal jurisdiction over a nonresident under the long-arm statute was valid:
The 1987 amendment was designed to insure that the long-arm jurisdiction of a Louisiana court extends to the limits allowed by due process. See Official Comment Acts 1987, No. 418. When constitutional requirements of due process have been met, there is no longer a need to inquire into whether the defendant's conduct falls within the reach of the long-arm statute. Now, under the express terms of the present long-arm statute, the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements. If the assertion of jurisdiction meets the constitutional requirements of due process, the assertion of jurisdiction is authorized under the long-arm statute. The limits of Louisiana's long-arm statute and the limits of constitutional due process are now coextensive. Furthermore, the enactment of a new long-arm statute or the amendment of an existing statute apply retroactively to provide jurisdiction over a nonresident whose conduct giving rise to the cause of action occurred prior to the effective date of the statute or amendment.
515 So.2d at 792 (La.1987) (citations omitted).
In the landmark United States Supreme Court decision of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), the court held that jurisdiction may be asserted over a nonresident who has 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.
The minimum contacts test requires that "the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law." Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958); Superior Supply Co. v. Assoc. Pipe & Supply Co., supra; J. Wilson Jones Co. v. Touche Ross & Co., 556 So. 2d 67 (La.App. 4th Cir.1989) (emphasis added). The defendant's connection with the forum state must be such that the defendant should have reasonably anticipated being haled into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980).
In the present case, there are virtually no contacts between Package Supply and the forum state. Package Supply was a South Carolina corporation with its principal place of business in South Carolina. Package Supply is a supplier of goods and not a manufacturer. Package Supply neither maintains an office or agent in this state nor has any sales personnel that visit or solicit business in this state. There was no evidence presented that Package Supply owned property or had assets in this state. Nor is there any evidence in the record to indicate that Package Supply had ever advertised by local Louisiana media.[6] Moreover, the particular sale/distribution to Oxford which is the subject of this litigation (and apparently all other sales to Oxford) was handled with the Oxford sales office in Georgia.[7]
Based on the above principles of law and the facts of this case, we conclude that Package Supply did not purposefully establish sufficient minimum contacts with Louisiana necessary to satisfy constitutional due process requirements and subject it to suit here.
*953 Accordingly, the trial court's judgment sustaining the exception of lack of personal jurisdiction and dismissing the action against Package Supply is affirmed.
AFFIRMED.
NOTES
[1] This drain cleaner is concentrated sulfuric acid.
[2] In their amending petition, plaintiffs alleged that they had learned during discovery that either Package or InMark, Inc. had distributed the cap in question to Oxford.
[3] The trial court rejected plaintiffs' contention that Package Supply was subject to the trial court's specific jurisdiction under LSA-R.S. 13:3201(A)(8). It found that Section 8 specifically applied to manufacturers, and not suppliers such as Package Supply. The trial court also found that even if Package Supply could foresee that a product it sold to Oxford would cause injury in Louisiana, foreseeability alone has never been a sufficient benchmark for the exercise of personal jurisdiction under the Due Process Clause of the United States Constitution. Finding that the plaintiffs failed to prove Package Supply had sufficient minimum contacts with Louisiana to warrant a finding of personal jurisdiction, the trial court sustained the defendant's exception and dismissed the action against Package Supply.
[4] The trial court also analyzed the facts of this case under LSA-R.S. 13:3201(A); however, it ultimately decided that an interpretation of Subsection B of the statute and de Reyes v. Marine Mgt. and Consulting, 586 So. 2d 103 (La.1991) required that it sustain the exception of lack of jurisdiction.
[5] The cause of action in this case arose prior to the effective date of the amendment. However, the jurisprudence characterizes long-arm statutes as procedural and has held amendments to such statutes apply retroactively. See Petroleum Helicopters, Inc. v. Avco Corporation, 513 So. 2d 1188 (La.1987); McBead Drilling Co. v. Kremco, Ltd., 509 So. 2d 429 (La.1987).
[6] During her deposition, Paulette Grant, Regional Sales Manager for Package Supply, testified that Package Supply does advertise in packaging magazines and trade journals. (R. Vol. IV. pp. 453-55).
[7] See Grant's telephonic deposition. (R.Vol. IV. pp. 443-49). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2389693/ | 130 N.J. 484 (1993)
617 A.2d 247
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOSEPH M. SPANN, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued November 27, 1990.
Decided January 5, 1993.
*487 Carol M. Henderson, Deputy Attorney General, argued the cause for appellant (Robert J. Del Tufo, Attorney General of New Jersey, attorney; Steven E. Lessick, Deputy Attorney General, of counsel and on the brief).
*488 Michael B. Einschlag, Designated Counsel, argued the cause for respondent (Wilfredo Caraballo, Public Defender, attorney).
PER CURIAM.
Defendant, Joseph M. Spann, was convicted of sexual assault, a second-degree crime under N.J.S.A. 2C:14-2c(3). The statute criminalizes sexual penetration when the defendant has supervisory or disciplinary power, by virtue of his "legal, professional or occupational status" and when the victim is "on probation or parole, or is detained in a hospital, prison or other institution...." Defendant was a corrections officer at the Salem County Jail, where the victim was incarcerated on a detainer from the Immigration and Naturalization Service. Under those circumstances, intercourse itself is the crime, and here the proof of intercourse was strong, the verdict clearly sustainable even without the evidence challenged in this appeal. We find, however, as did the Appellate Division, that evidence was improperly admitted, and we cannot say that it was harmless. The admissibility of the evidence and harmless error were the only two points asserted in the State's petition for certification following the Appellate Division's reversal of the conviction. State v. Spann, 236 N.J. Super. 13, 563 A.2d 1145 (1989).
As noted above, the only real issue, given the nature of the crime, was whether defendant had intercourse with the prisoner. Consent, force, or threats are irrelevant under the offense that was charged. The challenged evidence was that defendant was the father of the victim's child, conception clearly having occurred while she was imprisoned. If he was the father, criminal intercourse had occurred. The evidence consisted of blood and tissue tests, including human leukocyte antigen (HLA) tissue tests used to prove not that defendant was or was not excluded as the father but that he was the father. The specific item of that proof objected to by counsel was the State expert's opinion, based on those tests, that the "probability" of defendant's paternity was 96.55%. Obviously, that probability *489 opinion, if improperly admitted, was highly prejudicial. If the expert's opinion were credited by the jury, unusually strong contradictory evidence would be required to overcome it. The expert's qualitative description of the percentage, expressed in non-mathematical terms (known as the "verbal predicate"), was that it was "very likely" defendant was the father. As stated by the prosecutor in summation, "guilt ... is proved to a mathematical certainty ... by carefully applying an objective scientific technique to the hard facts of this case."
The expert, testifying that the probability of defendant's paternity was 96.55%, knew absolutely nothing about the facts of the case other than those revealed by the blood and tissue tests of defendant, the victim, and the child, and that defendant was the accused.
I
Use of Blood-Tissue Specimens to Prove Paternity; Calculation of Probability of Paternity; Use of Calculation in this Case
Until relatively recently, blood-grouping tests to establish paternity were admissible only to exculpate the accused in paternity cases. N.J.S.A. 2A:83-3 (repealed by New Jersey Parentage Act, L. 1983, c. 17, § 23). Science had proven, and there is apparently no question about the validity of the proposition and certainly none raised in this case, that certain blood specimens completely exclude others. Thus, blood specimen "X," found at the scene of the crime and presumably that of the criminal, cannot come from an accused who has blood specimen "Y." Similarly, blood specimens from mother and child that conclusively determine that only a man with blood specimen "X" could be the father eliminate a man with blood specimen "Y." In such cases, if the accused's blood was excluded, he was innocent; in paternity disputes, he was not the father. In New Jersey paternity cases, this limited use of blood tests, to prove only that defendant was not the father, *490 was codified in 1939. R.S. 2:99-3, N.J.S.A. 2A:83-3 (repealed). On the other hand, however, if the blood specimen was of the kind that could have come from the purported father, the evidence was apparently inadmissible to prove paternity.
The lack of probative force of this evidence for the purpose of proving paternity was thought to warrant its exclusion. Its identifying factor, the fact for instance that 50% of the population, including the accused, have blood that could have produced a specimen matching that of the father, was deemed too insignificant to justify admission if offered as independent proof of paternity, i.e., sufficient proof by itself. Even though insignificantly probative, it nevertheless was admissible as "a link in the chain of evidence" in criminal trials, just as the alleged assailant's blond hair is used against a blond defendant. See State v. Beard, 16 N.J. 50, 58-59, 106 A.2d 265 (1954) (holding type O the victim's blood type and also the most common type blood stains on defendant's clothing admissible as "link in the chain of evidence"); see also State v. Alexander, 7 N.J. 585, 593-94, 83 A.2d 441 (1951) (allowing evidence of defendant's blood type at murder trial for purpose of showing it was of the same type as blood found on the murder weapon), cert. denied, 343 U.S. 908, 72 S.Ct. 638, 96 L.Ed. 1326 (1952).
With the advent of multiple tests of blood samples, geneticists were sometimes able to exclude up to 72% of the population from certain blood types, i.e. given that kind of sample, those tests conclusively demonstrated that the sample could have come from only a limited portion of the population 28% of it. Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam. L.Q. 247, 256-57 (1976) ["Joint AMA-ABA Guidelines"]. And with the discovery and development of HLA tissue testing a test not of blood alone but of tissues of all kinds the combination of blood and tissue testing, and on many occasions HLA testing alone, very often brought the exclusionary percentage to 95% and higher. Ibid.; D.H. Kaye, Plemel As a Primer on Proving Paternity, 24 Willamette L.Rev. 867, 868 (1988) *491 ["Kaye, Plemel As Primer"]. In contrast to earlier bloodgroup testing, which had limited utility in identifying rare blood types, the advanced HLA systems enable geneticists to identify a rare blood type "in virtually every case."[1] Robert W. Peterson, A Few Things You Should Know About Paternity Tests (But Were Afraid to Ask), 22 Santa Clara L.Rev. 667, 675 (1982) ["Peterson, Paternity Tests"].
When the portion of the population excluded ran as high as, e.g., 98%, it became intuitively obvious that if only 2% of the population could produce that sample and defendant was part of the 2%, it was not only consistent with his guilt, but tended to prove it here that he was the father. Tests of blood and tissue samples started to be admitted not only to prove exclusion but also to prove paternity. See Essex County Welfare *492 Div. v. Harris, 189 N.J. Super. 479, 482-83, 460 A.2d 713 (App.Div. 1983); J.H. v. M.H., 177 N.J. Super. 436, 441, 426 A.2d 1073 (Ch.Div. 1980); Malvasi v. Malvasi, 167 N.J. Super. 513, 515, 401 A.2d 279 (Ch.Div. 1979). With an estimated one out of every six children born out of wedlock in this country, Kaye, Probability of an Ultimate Issue, supra n. 1, 75 Iowa L.Rev. at 76 n. 5, testimony revealing the probability of paternity becomes important, to society in general and to the welfare system in particular. Prodded by federal laws aimed at identifying fathers for child-support purposes where children received welfare benefits, New Jersey amended its parentage laws, for the first time allowing the court to require blood or genetic tests in contested paternity cases and to compel such tests when requested by a party. N.J.S.A. 9:17-51a. Whenever HLA tests are ordered by the court, they are admissible in evidence to establish "the positive probability of parentage." N.J.S.A. 9:17-51e. Moreover, "evidence relating to paternity may include ... genetic or blood tests, weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity". N.J.S.A. 9:17-52.
Precisely that kind of positive proof of paternity was used in this criminal case, as it had been in prior civil paternity cases without objection. See, e.g., Jones v. Jones, 242 N.J. Super. 195, 200, 576 A.2d 316 (App.Div.), certif. denied, 122 N.J. 418, 585 A.2d 412 (1990); Middlesex County Bd. of Social Servs. v. G.G., 237 N.J. Super. 322, 323-34, 567 A.2d 1019 (App.Div. 1989). The State's expert stated that the blood and tissue samples, combined with statistical data reflecting the number of men with the relevant genes, excluded 99% of the North American black male population as possible fathers. In other words, only 1% of the presumed relevant population had the type of blood and tissue that the father must have had, and further, defendant was included within that 1%.
In calculating a final probability of paternity percentage, the expert relied in part on this 99% probability of exclusion. She also relied on an assumption of a 50% prior probability that *493 defendant was the father. This assumption, not based on her knowledge of any evidence whatsoever in the case, placed the odds of defendant being the father wholly apart from the blood-tissue test at fifty-fifty. The fifty-fifty odds are usually expressed as "defendant being no more or less likely of being the father than any other man chosen at random." The claim of the victim (that defendant is the father) and the claim of the accused (that he is not) ostensibly are given equal weight. Or, as the expert stated in this case, "everything is equal ... he may or may not be the father of the child." Based on the various tests, and the fifty-fifty assumption, the expert concluded that "[t]he likelihood of this woman and this man producing this child with all of the genetic makeup versus this woman with a random male out of the black population ... [results in] a probability of paternity [of] 96.55 percent."[2]
This figure was conveyed to the jury to mean what it says this man is the father, or at least it is 96.55% probable that he is. It is not intended to and does not mean that he is part of a small group who might be the father (1% and if there are 100,000 men in the relevant population, that "small group" adds up to 1,000 men). It means that even though there may be 1,000 others who fit the bill, he is the father the odds are not 999 to 1 against the possibility of his being the father, but a 96.55% probability that he is.[3] If credited, the opinion is enormously persuasive.
*494 The expert's opinion was based on a mathematical combination of three factors: the expert's assumed probability that defendant was as likely as any other man to be the father; the "probability" that a guilty suspect would have the required blood type (the probability here is 1, i.e., 100%, for whoever was "guilty," namely, the father, must have that blood type); and the probability that any man chosen at random would have that blood type (here 1%). Using a mathematical formula (Bayes' Theorem) apparently universally-accepted as valid in conventional probability analysis, the expert calculated the probability of paternity by multiplying the assumed odds (fifty-fifty, such odds being expressed as "1") by the relative likelihood of paternity as shown by the tests, called a "likelihood ratio" and calculated by dividing the probability of the incriminating results being found in a guilty suspect (1.0) divided by the probability that they will be found in an innocent suspect (.01). This multiplication (1 X 1/.01) gives the new odds: 100. Since odds of 100 means a probability of 100 out of 101 chances (odds of 3, for instance, means 3 to 1 or three out of four chances, a probability of .75), the probability thus calculated would be 99.01%. In fact, as noted above, the probability of paternity figure was 96.55%. Essentially, the formula the expert actually used included an exclusionary factor of 3.57% (not 1%) and would look something like the following:
1 X 1 = 28
_____
.0357
(prior (likelihood (new
odds) ratio) odds).
*495 The odds of 28 are the equivalent of a probability of 96.55%.
The reports of blood and tissue testing labs fairly regularly use this mathematical formula, calculating the probability of paternity figure based on the fifty-fifty assumption (that assumption sometimes referred to as the "prior probability," to convey the sense that it is the probability of defendant being the father based on all of the evidence in the case prior to any consideration of the blood and tissue test evidence). See Richard H. Walker, Guidelines for Reporting Estimates of Establishment, in United States Dep't of Health and Hum. Servs., Essentials for Attorneys in Child Support Enforcement, app. C, 391, 392 (1986). Many of the experts who testify concerning the lab results also use the fifty-fifty assumption, following Joint Guidelines formulated in 1976 by the American Medical Association (A.M.A.) and the Section on Family Law of the American Bar Association (A.B.A.). Joint AMA-ABA Guidelines, supra, 10 Fam.L.Q. at 262.
On cross-examination defense counsel brought out the fact that the probability of paternity percentage was based on that fifty-fifty assumption. The expert described it as a "neutral" assumption. Since it supposedly favored neither the accused nor the victim, the expert said it gave the contention of each side (mother and purported father) equal weight and eliminated any subjectivity from the opinion. Her characterization of the evidence was that its "purely objective" nature was "one of the beauties of the test"; that it "makes no assumption other than everything is equal"; and that "the jury simply has objective information." According to her testimony, there was no taking of sides, no judgment on the facts of the case. Defense counsel saw it differently. Counsel noted that even if it were conclusively proven that defendant had been out of the country at the time when conception could have occurred, this expert still would have concluded that the probability defendant was the father was 96.55%. Counsel's observation was correct; the *496 expert's opinion had no relation whatsoever to the facts of the case.
The Appellate Division ruled that the probability of paternity percentage was inadmissible to prove intercourse because, in that court's view, the calculation itself assumed that intercourse had taken place. 236 N.J. Super. at 26, 563 A.2d 1145 (citing State v. Hartman, 145 Wis.2d 1, 426 N.W.2d 320, 326 (1988)). Quite simply, the Appellate Division ruled that the State cannot prove intercourse through a formula that assumes intercourse, or put differently, the trier of fact cannot convict a defendant of a crime through a formula that assumes the defendant committed the crime. Ibid. That conclusion, supported by language in some cases, e.g., In re Paternity of M.J.B., 144 Wis.2d 638, 425 N.W.2d 404, 409 (1988); County of Sonoma v. Grant W., 184 Cal. App.3d 868, 872, 229 Cal. Rptr. 297, 301, judgment vacated, 187 Cal. App.3d 1439, 232 Cal. Rptr. 471 (1986); Everett v. Everett, 150 Cal. App.3d 1053, 1064, 201 Cal. Rptr. 351, 362-63 (1984); People v. Pasko, 184 Ill. App.3d 528, 132 Ill.Dec. 722, 726, 540 N.E.2d 462, 466 (1989), as well as by statements in articles on the subject, e.g., Peterson, Paternity Tests, supra, 22 Santa Clara L.Rev. at 685, was almost compelled by the record in this case the expert practically conceding the point and both counsel agreeing that intercourse was assumed in the calculation.
The conclusion, however, is incorrect. The .5 prior-probability assumption (odds of 1) says only that the chance that defendant is the father is fifty-fifty, that it is just as likely that he is not the father as that he is, or that it is just as likely that he is as that any man chosen at random is. Those odds, for instance, are wholly consistent with a fact pattern that one and only one man had access to and intercourse with the victim and that one of two, and only two, men, including defendant, could possibly have been that one man, neither one more likely than the other to be the father. The fifty-fifty odds calculated into the probability of paternity percentage do not at all assume that defendant had intercourse with the victim; indeed, defendant *497 might have been the one with no access to the victim. See Kaye, Probability of an Ultimate Issue, supra, 75 Iowa L.Rev. at 105 n. 153 (noting .5 prior probability "does not assume that intercourse definitely took place"); Mark Ellman & David Kaye, Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L.Rev. 1131, 1150 (1979) ["Ellman & Kaye, Probabilities and Proof"] (stating fifty-fifty assumption "equivalent to supposing that the universe of possible fathers is already reduced to two equally likely suspects before considering the HLA test results."). Those odds say only that the chances are fifty-fifty that he is the father. Obviously, they assume a substantial possibility, 50%, that he had intercourse with the victim, but not that he positively did.
But even on that correct understanding of the effect of the fifty-fifty assumption, a defendant could justly argue that it is totally unfair, indeed inadmissible, to ascribe even that substantial probability 50% to him, without the slightest regard to the facts of the case.
II
Enabling Jury to Use Its Own Estimate of Guilt Along with Expert's Calculations of Probability of Paternity
For different reasons, however, we agree that the admission of the probability of paternity opinion as presented in this case was error. Although the jury learned, in cross-examination of the expert, of the expert's assumption of a 50% prior probability that defendant was the father, the clear impression given by the expert was that it was somehow a "scientific" assumption, an accepted part of a scientific calculation, "objective," "neutral," "fair." It is no such thing although it is often, indeed apparently almost regularly, used by forensic experts testifying in paternity matters. See Mikel Aichin, Some Fallacies in the Computation of Paternity Probabilities, 36 Am.J.Hum.Genetics 904, 906, 915 (1984) ["Aichin, Fallacies"] (asserting that although most paternity testers accept *498 mathematical framework underlying probability of paternity percentage, courts have gone too far in accepting this expert testimony). While counsel could have demonstrated this inherent lack of neutrality through fuller cross-examination, we think that his objections to the introduction of the probability of paternity percentage on that ground were well founded, fairly clearly stated, and should have been sustained.
More than that, we conclude that even if not objected to sufficiently by counsel, the expert's opinion on probability of paternity did not satisfy the most fundamental requirement of expert testimony: its ability to aid the jury in its deliberations. See State v. Kelly, 97 N.J. 178, 209, 478 A.2d 364 (1984). Moreover, as presented, the testimony "create[d] [a] substantial danger of ... misleading the jury." Evid.R. 4; see also Fed. R.Evid. 403 (requiring exclusion of evidence where probative value "substantially outweighed by the danger of ... misleading the jury"). In this criminal case, the jury had no idea what to do with the probability of paternity percentage if its own estimate of probabilities (the prior probability of paternity as estimated by the jury apart from blood and tissue tests) was different from .5. There was neither guidance from the expert nor specific instructions from the trial court regarding this crucial aspect of the probability of paternity opinion. Was the jury supposed to reject the expert's opinion, or was that opinion still of scientific value because of its alleged "objectivity"? Was the expert's opinion valid even if the jury disagreed with the assumption of .5? If the jury concluded that the prior probability was .4 or .6, for example, the testimony gave them no idea of the consequences, no idea of what the impact (of such a change in the prior probability) would be on the formula that led to the ultimate opinion of probability of paternity.
The jury did not know, for instance, that even if it believed that the prior probability was half of the assumed prior probability, namely, .25 instead of .5, the formula would not at all result in cutting in half the ultimate result, the probability of paternity percentage. Indeed, it would still have left the probability *499 of paternity above 90% (the reduction apparently being from 96.55% to 90.24%). This total lack of "neutrality" on the part of the assumption could not be understood without that kind of information, which would have given the jury at least some basis for evaluating the significance of its own prior-probability determination, assuming it made one. Additionally, a full exposition of the impact of differing prior-probability assumptions would have aided the jury in evaluating the validity and usefulness of the formula itself as applied to paternity cases.
There is no contention in this case by defendant that the probability of paternity thus computed is inadmissible as such (at oral argument defense counsel said that the probability of paternity opinion was admissible if the jury itself found that the prior probability was .5). We therefore could conclude this opinion with the implicit holding above, namely, that a probability of paternity opinion is admissible but only if the expert notes that the calculations leading to that opinion use as one of the critical factors an assumed prior probability of paternity of .5. While this .5 assumed prior probability clearly is neither neutral nor objective, rather than prohibiting an expert witness from describing it as such, we would leave it to counsel to challenge this characterization through cross-examination. However, a jury should be required to use its own estimate of the prior probability of paternity, one based on all of the evidence in the case other than the scientific evidence arising from the blood and tissue tests; a prior probability, in other words, based on facts of which the expert has absolutely no knowledge the facts of the case as they would exist were there no scientific tests, no scientific reports, and no expert. Furthermore, the expert's testimony should be required to include an explanation to the jury of what the probability of paternity would be for a varying range of such prior probabilities, running, for example, from .1 to .9.
On this last point, we note that a similar approach, initially suggested by Professors Ellman and Kaye, Probabilities and *500 Proof, supra, 54 N.Y.U.L.Rev. at 1152-58, has been adopted by the Supreme Court of Oregon. Plemel v. Walter, 303 Or. 262, 735 P.2d 1209, 1219 (1987). In that case, the court held that an expert who testifies regarding a probability of paternity "should present calculations based on [varying] assumed prior probabilities of 0, 10, 20, 30, 40, 50, 60, 70, 80, 90 and 100 percent." 735 P.2d at 1219. Such an approach ensures that the jury's attention will be focused on the other evidence in the case and that it will not be misled by the expert's assumption of a prior probability of .5. Ibid.; see generally Kaye, Plemel As Primer, supra, 24 Willamette L.Rev. 867.
Other courts have challenged the use of the fifty-fifty assumption. See, e.g., County of Sonoma v. Grant W., supra, 184 Cal. App.3d at 868, 229 Cal. Rptr. at 301-302; Everett v. Everett, supra, 150 Cal. App.3d at 1070, 201 Cal. Rptr. at 361; Commonwealth v. Beausoleil, 397 Mass. 206, 490 N.E.2d 788, 797 n. 19 (1986); Kofford v. Flora, 744 P.2d 1343, 1351-52 (Utah 1987); Bridgeman v. Commonwealth, 3 Va. App. 523, 351 S.E.2d 598, 603 (1986); In re Paternity of M.J.B., supra, 425 N.W.2d at 409. Indeed some courts have rejected the use of the probability of paternity statistic altogether on the grounds that the assigned .5 prior probability renders the statistic unreliable. E.g., Plemel v. Walter, supra, 303 Or. 262, 735 P.2d at 1219; Cole v. Cole, 74 N.C. App. 247, 328 S.E.2d 446, 450-51 (1985), aff'd 314 N.C. 660, 335 S.E.2d 897 (1985); People v. Pasko, supra, 132 Ill.Dec. at 727, 540 N.E.2d at 467; Sara H. v. Bart D., 121 Misc.2d 425, 432, 467 N.Y.S.2d 1001, 1005 (Fam.Ct. 1983).
In this somewhat abstruse area, therefore, procedures should be designed to avoid an outcome based on an unchallenged and unexplained .5 assumption of prior probability unexplained and unchallenged because of the possible lack of knowledge of counsel. And these procedures should also obviate a jury unenlightened concerning the impact, on the probability of paternity opinion, of varying prior probabilities. Other problems, *501 such as the possibility of error in the lab tests, are common to all similar expert testimony and presumably will be brought out in cross-examination as they were here.[4]
III
Admissibility of Probability of Exclusion and Paternity Index Based on Defendant's Blood-Tissue Type
Given the controversies that exist concerning this matter the admissibility not only of the probability of paternity opinion, but of the exclusionary percentage itself, as well as suggested conditions required in other cases that must be satisfied before such evidence is admitted, see, e.g., Commonwealth v. Beausoleil, supra, 490 N.E.2d at 795-97; Kofford v. Flora, supra, 744 P.2d at 1353 we believe further comment is needed. The comment is intended for consideration by courts (and attorneys) facing these issues but is not intended to be binding unless explicitly indicated. Our observations are based on cases, texts, and articles that in other contexts might be adequate to anticipate and dispose of related problems without a comprehensive record before us in a specific case and the record here is far from comprehensive. Those sources, however, not only disclose raging controversy but demonstrate a subject matter that, at certain levels, is so complex that we are reluctant to *502 categorically dispose of the issues in the absence of a comprehensive adversarial proceeding, and especially so in the context of a criminal case. We therefore leave the initial determination of all of these issues including the admissibility of the probability of paternity and appropriate conditions on its admissibility to trial courts when these issues are presented and fully tried. Our comments are intended solely as guides and considerations, none of these matters having been briefed or argued before this Court. We provide this guidance because the questions involved will inevitably arise in future cases of this kind, including some criminal cases other than rape prosecutions, e.g., when blood and tissue type of defendant corresponds to type found at scene of crime.
We note that the Appellate Division, in ruling on the admissibility of the probability of paternity opinion, properly ruled only on the propriety of the expert's assumption of a 50% prior probability. 236 N.J. Super. at 27, 563 A.2d 1145. It did not become involved, and did not have to, with the question of whether that defect in the expert's testimony, if corrected, would have rendered the probability of paternity opinion admissible, and, if so, under what conditions. Furthermore, its observations concerning the admissibility of other evidence the exclusionary percentages and the related paternity index were dictum, id. at 25, 563 A.2d 1145, because both parties agreed they were admissible. This dictum, with which we agree, requires further explanation.
We explicitly note here that in addition to the probability of exclusion, the related paternity index if that has been calculated is admissible at trial. It is, in effect, an exclusionary percentage that is based on additional blood tissue information resulting in a different likelihood ratio usually higher than it would be without that information. Kaye, Probability of an Ultimate Issue, supra, 75 Iowa L.Rev. at 89-91. As we understand it, the exclusionary percentage, calculated by reference to a table of frequencies among the relevant population, is the result of the battery of tests that are usually made on a *503 blood-tissue specimen. Each test is presumed to be independent of the other, the net result being not simply the exclusionary percentage that results from a particular test, but the exclusionary percentage that results from all of them, one being multiplied by the other. The "paternity index" adds another element: it factors into the exclusionary percentage (which discloses the percent of the population that has the required blood-tissue type) the relative likelihood of that type being transmitted to the child, some blood-tissue types included within the 1% being more likely to be transmitted than other included types. In other words, the less refined exclusionary percentage reflects the fact, for example, that only one out of a hundred men within the relevant population have the blood-tissue type that the father must have. In a population of one million there are presumably 5,000 such men, any one of whom could be the father. Refining the blood-tissue type genetic analysis further, we learn that there are sub-types and that while any one of the 5,000 could possibly be the father, those within that group who have a certain sub-type are more likely than others to be, this greater likelihood being statistically measurable in having the effect of increasing the exclusionary percentage and the likelihood ratio. (Some sub-types within the 5,000 are less likely to be the father, and result in a lower likelihood ratio.) The paternity index is essentially this new likelihood ratio. Kaye, Plemel As Primer, supra, 24 Willamette L.Rev. at 871-73.
The question of the permissible use of this kind of evidence is similar to that posed in Landrigan v. Celotex, 127 N.J. 404, 414, 605 A.2d 1079 (1991). There, as here, the evidence consisted of two distinct elements: first, the non-statistical evidence (the decedent's exposure to asbestos, and the absence of other potential causative factors) indicating that asbestos might have caused colon cancer all of that evidence comparable to the non-scientific evidence in this case tending to prove that intercourse occurred; and second, background associative factors that it is more likely (in Landrigan, 1.55 was the likelihood *504 ratio) that one exposed to asbestos will get colon cancer than one who is not this statistical element of the case comparable to the evidence in this case of the greater likelihood that a man with a blood-tissue type of the defendant is 100 times more likely to be the father than a man chosen at random.
In Landrigan, we concluded, that the epidemiological evidence the statistical likelihood that asbestos might have been the cause based solely on the greater occurrence of colon cancer in those who are exposed to asbestos could be used along with other non-statistical "direct" evidence to support a conclusion of causation. In this case, instead of simply giving the jury both sets of facts the underlying facts of the case and the related statistical evidence and leaving to the jury the determination of the significance when both sets are put together, as we did in Landrigan, here a mathematical computation is added to the mix, one that purports precisely to calculate the probability of the ultimate issue.[5] The point here is that there is nothing fundamentally new in the use of blood-tissue tests to support the conclusion of paternity. What is new is the question of the admissibility of this mathematical formula to guide the jury in its use of the test information.
IV
General Admissibility of Expert's Mathematical Calculation of Probability of Paternity
Because the issue was neither tried nor raised before us, we do not decide whether the probability of paternity opinion, *505 based on Bayes' Theorem, is sufficiently reliable to warrant its use in criminal cases to prove paternity. Its use in civil paternity proceedings appears to have legislative authorization. See N.J.S.A. 9:17-52c (permitting evidence "of the statistical probability of the alleged father's paternity"). Opinions based on Bayes' Theorem, however, are far from universally accepted for forensic purposes, especially in criminal cases. As noted below, we leave the determination of the admissibility of the probability of paternity opinion to the trial court after a full hearing of the matter.
Without meaning to foreclose examination of any issue that the trial court deems relevant in making the admissibility determination, we suggest that the precise issue is rather narrow. We believe, from our readings, that Bayes' Theorem, when applied in conventional probability analysis, is practically universally accepted as valid certainly sufficiently accepted to conform to any requirement of "general acceptance in the relevant scientific community." See Probability and Inference in the Law of Evidence ix (Peter Tillers and Eric D. Green eds., 1988) ("[E]ven the most rigorous critics of Bayesianism do not argue that Bayes' Theorem is invalid"); Peterson, Paternity Tests, supra, 22 Santa Clara L.Rev. at 682 ("there is no dispute over the mathematical correctness of Bayes' Theorem"). What is not at all clear is its general acceptance for the purpose of converting what is essentially a non-mathematical conclusion of a prior probability of guilt into a higher probability through the use of the formula.
The controversy, rather than the "general acceptance," concerning the use of the probability of paternity opinion and Bayes' Theorem or formula indeed the evidentiary use of Bayes' Theorem at all is best reflected in the scholarly articles on this issue. See generally D.H. Kaye, Presumptions, Probability and Paternity, 30 Jurimetrics J. 323 (1990); C.C. Li & A. Chakravarti, An Expository Review of Two Methods of Calculating the Paternity Probability, 43 Am.J.Hum.Genetics *506 197 (1988); L. Jonathan Cohen, The Role of Evidential Weight in Criminal Proof, 66 B.U.L.Rev. 635 (1986); Lea Brilmayer, Second-Order Evidence and Bayesian Logic, 66 B.U.L.Rev. 673 (1986); Stephen Fienberg & Mark J. Schervish, The Relevance of Bayesian Inference for the Presentation of Evidence and for Legal Decisionmaking, 66 B.U.L.Rev. 771 (1986); Leonard J. Jaffee, Of Probativity and Probability: Statistics, Scientific Evidence, and the Calculus of Chance at Trial, 46 U.Pitt.L.Rev. 925 (1985); Craig R. Callen, Notes on a Grand Illusion: Some Limits on the Use of Bayesian Theory in Evidence Law, 57 Ind.L.Rev. 1 (1982); Michael O. Finkelstein & William B. Fairley, A Bayesian Approach to Identification Evidence, 83 Harv.L.Rev. 489 (1970). The intensity and complexity of the dispute is mind boggling on occasion for those other than mathematical experts. Indeed, even the experts have difficulty with it. One, for instance, referred to the Bayes' Theorem in 1987 as the "reigning" view, D.H. Kaye, Apples and Oranges: Confidence Coefficients and the Burden of Persuasion, 73 Cornell L.Rev. 54 (1987), but five years earlier had described it as "not used as widely as the classical theories." D.H. Kaye, The Numbers Game: Statistical Inference in Discrimination Cases, 80 Mich.L.Rev. 833, 853 (1982). This same authority, Professor Kaye, although apparently supportive of the use of the formula to establish probability of paternity in 1979, Ellman & Kaye, Probabilities and Proof, supra, 54 N.Y.U.L.Rev. at 1149, expressly suggested its exclusion in criminal cases in 1987, D.H. Kaye, The Admissibility of Probability Evidence in Criminal Trials, 27 Jurimetrics J. 160, 172 (1987).
The disagreement on the subject is such as to prevent us from reaching any conclusion about "general acceptance." What is needed is what the trial court will have: examination and cross-examination on that issue. It boils down to this: you have a mathematical formula that invariably works in converting a mathematical statistical probability into a new probability by using in that formula new information about the matter, *507 here the likelihood ratio based on the blood-tissue tests. The question is whether the formula produces reliable results when it is applied to a jury's conclusion about the prior probability for instance when a jury, let us say in this case, concludes that even without the blood-tissue tests it believes defendant is guilty, that he is the father, and it quantifies that belief by saying that it is 60% probable that he is the father. Ordinarily, a 60% probability means that out of ten chances, the event in question will occur six times, but not the four other times. But what does a 60% probability mean in this case other than the strength of the jury's belief in guilt? That is just the beginning of the argument.
One of the ends of the argument is the meaning of the ultimate figure here that the probability of paternity is 96.55%. The expert translates that into "very likely," based on the verbal predicate set forth in the Joint AMA-ABA Guidelines. Joint AMA-ABA Guidelines, supra, 10 Fam.L.Q. at 262. To a layman, 96.55% probability seems to correspond to something much stronger, highly likely, almost certain. But how is the jury to relate that percentage to the governing standard: "beyond a reasonable doubt"?
The formula is helpful, if one considers it helpful, because it tells the jury in mathematical terms just how strongly the blood-tissue tests may be deemed to point in the direction of paternity here, converting an assumed probability of 50% into one of 96.55%. If valid, the expert's opinion performs a service in helping the jury in such a case, for jurors presumably will have great difficulty in figuring out the significance of the likelihood ratio. Put differently, although the jury will intuitively and logically understand that the exclusion of 99 out of every 100 males as possible fathers increases the likelihood that defendant is the father, the jury will have difficulty in assessing just how much that likelihood is increased. The need for help in making that assessment is underscored when the typical arguments about the exclusionary percentage are considered arguments so often made that one writer calls them "the *508 prosecutor's fallacy" and "the defense attorney's fallacy." William C. Thompson & Edward L. Schumann, Interpretation of Statistical Evidence in Criminal Trials, The Prosecutor's Fallacy and the Defense Attorney's Fallacy, 11 Law & Hum.Behav. 167, 170-72 (1987). The argument often made or implied by the prosecutor is that because there is only one chance in a hundred that the defendant would have this blood type if he were not the father, the jury may conclude that there must be a 99% chance that he is the father. The defense attorney's argument is that if one out of every 100 men has this blood-tissue type, then because the city where the crime occurred has one million people, there are presumably 10,000 people with that same type, 5,000 of them men and the odds against defendant being the father are therefore 4,999 to 1. The defense argument, according to one study, is found more persuasive than the prosecutor's. Id. at 171. The conflict between the two arguments shows the jury's need for help in evaluating the significance of the exclusionary percentage. That need provides the justification and reason for the admission of the opinion and calculation of probability of paternity.
For all of these reasons, the trial court should conduct an Evidence Rule 8 hearing, determining the expert's qualifications and the satisfaction of the conditions attached to the admission of expert testimony, i.e., "general acceptability" (see Rubanick v. Witco Chemical Corp. 125 N.J. 421, 454, 593 A.2d 733 (1991)). The court may also decide that an Evidence Rule 4 hearing is needed. Its purpose would be to determine if the value of the probability of paternity opinion is substantially outweighed by the amount of time it will take to develop it, or the danger of prejudice or confusion.
Ordinarily, the conclusion that allows expert testimony in the first place here "general acceptability" is for the court. Furthermore, once it is made, depending on the circumstances, it can become the law for all future cases. We not only do not submit the question of the reliability of the breathalyzer to the *509 jury, it is no longer even submitted to the court in a Rule 8 hearing. We would assume, but we are not certain, that if the trial court's Rule 8 hearing is comprehensive, that its determination of admissibility, if upheld on appeal, would have a similar effect, permitting the use of Bayes' Theorem in a criminal case involving the question of paternity in future cases. It is impossible, however, for us to conclude just how much of the conflicting evidence about the validity of Bayes' in such application should be submitted to the jury. The answer to that question may bear directly on whether a Rule 4 determination is needed, for it seems to us that if the admission of this evidence because it has achieved "general acceptance" nevertheless requires, as a matter of fairness, a two-day trial before a jury to allow the testimony of those who do not accept it, the potential of confusion and the consumption of time may argue against its admission. We distinguish here between the time consumption and lengthy presentation of technical evidence before the court in the Rule 8 hearing (in most cases irrelevant to the Rule 4 question, which is directed at proceedings before the jury) and the same factors as applied to the jury trial itself.
Since we have visited the subject fairly recently (Windmere, Inc. v. International Insurance Co., 105 N.J. 373, 386, 522 A.2d 405 (1987); Landrigan, supra, 127 N.J. at 414, 605 A.2d 1079; Rubanick, supra, 125 N.J. at 433-34, 593 A.2d 733), we need only summarize the rules governing the admission of expert testimony. In New Jersey, the "general acceptance by the relevant scientific community" test, established in Frye, substantially is still the law in New Jersey. See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.1923); State v. Kelly, 97 N.J. 178, 210, 478 A.2d 364 (1984). But cf. 1 McCormick on Evidence § 203, at 871-72 (4th ed. 1992) (noting that Frye test has lost much of its force); Fed.R.Evid. 702 (permitting admission of expert opinion if it assists trier of fact); Fed.R.Evid. 704(a) (allowing expert testimony on ultimate issue). Despite invitations to do so, this Court has explicitly declined to part from the general acceptance requirement, Windmere, supra, *510 105 N.J. at 386, 522 A.2d 405, and presumably given a criminal case, would be even more reluctant. See State v. Johnson, 42 N.J. 146, 171, 199 A.2d 809 (1964) (requiring reliability of expert opinion evidence to be "clearly established").
An exception to the "general acceptance" standard is found in toxic tort cases on the issue of causation. Landrigan, supra, 127 N.J. at 414, 605 A.2d 1079; Rubanick, supra, 125 N.J. at 433-34, 593 A.2d 733. Recognizing the difficulties of proof of causation of cancer, and the apparent injustice of denying all recovery where the proof, although falling short of prior standards, is persuasive, we have allowed expert testimony, even though not generally accepted, where the facts and data relied on are of the kind that comparable experts would rely on, if the methodology or techniques used in converting those facts into an opinion are based on methodology that is similarly recognized by such experts as sound.
The "general acceptance" that is thought to impart sufficient reliability to the expert's opinion as to warrant its admission is shown through the testimony of experts, through authoritative scientific or legal writings, or through persuasive judicial opinions. State v. Kelly, supra, 97 N.J. at 210, 478 A.2d 364. Our readings, as suggested above, leave us with substantial doubt whether any one of the three methods of demonstrating general acceptance is present here. We know that general acceptance does not mean absolute or universal acceptance, State v. Tate, 102 N.J. 64, 83, 505 A.2d 941 (1986); State v. Johnson, supra, 42 N.J. at 171, 199 A.2d 809, and that total infallibility of the scientific technique is not required. Romano v. Kimmelman, 96 N.J. 66, 80, 474 A.2d 1 (1984). But if the bottom line is general disagreement rather than general acceptance, we doubt if the standard is satisfied.
Clearly, the probability of paternity as derived from indices based on HLA serologic tests and computed with Bayes' Theorem has achieved considerable recognition in the scientific community. The Joint AMA-ABA Guidelines specifically allow *511 for use of even the fifty-fifty assumption as a "useful working hypothesis," with the acknowledgement that this assumption "will not correspond to the facts in most cases of disputed paternity." Joint AMA-ABA Guidelines, supra, 10 Fam.L.Q. at 262. As noted above, there is almost universal support for the non-forensic use of Bayes' Theorem. Ante at 505-506. "HLA testing is accepted generally in the scientific community as a reliable procedure for proving or excluding paternity." Commonwealth v. Beausoleil, supra, 490 N.E.2d at 799.
We note also the explicit statutory provision permitting the use of blood and HLA tissue tests to "establish the positive probability of parentage," N.J.S.A. 9:17-51e, i.e., paternity, in civil paternity cases. That provision also allows "[e]xpert testimony pertaining to these tests," ibid., suggesting that the probability of paternity opinion used in this matter is statutorily permitted in civil cases, although the statute is not that explicit.[6] The further statutory language allowing "[t]he court, upon application and for good cause shown, [to] limit the admissibility of blood tests or genetic tests," ibid., effectively safeguards against any potential in civil cases for prejudice arising from test results, presumably including the probability of paternity opinion. Various civil cases, however, seem to assume its admissibility. See, e.g., Essex County Welfare Division v. Harris, supra, 189 N.J. Super. at 482-83, 460 A.2d 713; Jones v. Jones, supra, 242 N.J. Super. at 200, 576 A.2d 316; Middlesex County Board of Social Services, supra, 237 N.J. Super. at 323-24, 567 A.2d 1019.
More than that, the above-cited statutory provision is the result of changes in the federal law designed to increase recovery from fathers failing to support children receiving Aid *512 to Families with Dependent Children (AFDC) payments. The Family Support Act of 1988 (codified at 42 U.S.C.A. §§ 651 to 69 (1992 Supp.)), requires states to meet minimum paternity establishment performance standards, id. § 652(g)(1), and enhances this capacity by providing improved federal funding for laboratory testing conducted by the states. Id. § 655(a)(1). Under the federal law, states must require "the child and all other parties, in a contested paternity case, to submit to genetic tests upon the request of any such party,"[7]id. § 666(a)(5)(B), except in cases where the applicant or recipient of benefits has "good cause for refusing to cooperate as determined by the State Agency ..." 42 U.S.C.A. § 602(a)(26)(B).
Assuming the validity of this statutory direction in civil cases, see Winberry v. Salisbury, 5 N.J. 240, 244-45, 74 A.2d 406, cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950), apparently requiring admissibility of the probability of paternity, we would be reluctant to deny the admissibility of expert opinion of genetic testing results in criminal cases simply because the burden of proof is different. Regardless of whether the opinion is offered in a criminal or a civil context, its reliability and its tendency to prove a fact would seem to be the same. It is worth noting that a party in a paternity proceeding (like a defendant in a criminal trial) is entitled to be tried before a jury. N.J.S.A. 9:17-49; R. 5:14-1. Obviously, however, *513 liberty is involved in one case and not in the other. Furthermore, the considerations that prompted the statutory amendment in civil paternity cases may have been deemed to justify either a risk of error or other consequences not acceptable in criminal cases. See Windmere, supra, 105 N.J. at 378, 522 A.2d 405 ("[i]n the criminal context, conditions of admissibility must be `clearly established'") (quoting State v. Johnson, supra, 42 N.J. at 171, 199 A.2d 809). The quantification of the probability of paternity in the form of a number, while problematic even in a civil case where we sometimes speak of the burden as "more probable than not," i.e., more than a 50% probability causes almost undefinable difficulties in a criminal case, since no one has convincingly equated proof beyond a reasonable doubt with a probability number. L. Jonathan Cohen, The Probable and the Provable 49-57 (1977).
We believe the provision in the statute concerning civil paternity cases, therefore, is persuasive but not at all dispositive of the admissibility of this evidence in criminal cases. Our rules concerning the admissibility of expert testimony must still be satisfied, as well as any special considerations that may pertain to proof in criminal cases. Romano v. Kimmelman, supra, 96 N.J. at 80, 474 A.2d 1; State v. Cary, 49 N.J. 343, 352, 230 A.2d 384 (1967).
Assuming the trial court finds the expert's calculation of the probability of paternity admissible, we note some questionable restrictions on that admissibility suggested in case law. Several courts have instructed juries that they must disregard a probability of paternity figure unless they first find that the defendant had sex with the mother in the relevant time frame and under circumstances conducive to pregnancy. E.g., Everett v. Everett, supra, 150 Cal. App.3d at 1064, 201 Cal. Rptr. at 361-63; Commonwealth v. Beausoleil, supra, 490 N.E.2d at 797 n. 18; People v. Pasko, supra, 540 N.E.2d at 466. We, however, explicitly reject any notion that intercourse must be proved before the probability of paternity percentage can be *514 admitted, especially where intercourse, not paternity, is the ultimate issue. The calculation Bayes' Theorem if valid, does not depend on any particular degree of confidence in the fact of intercourse.
Some cases have suggested that where the probability of exclusion is under 90%, or the resulting probability of paternity under 95%, the opinion should be excluded. E.g., Commonwealth v. Beausoleil, supra, 490 N.E.2d at 795-96; Kofford v. Flora, supra, 744 P.2d at 1353; see also Imms v. Clark, 654 S.W.2d 281, 287 (Mo. App. 1983) (prohibiting admissibility of probability of exclusion where less than 90%). Based on our understanding of the issue, we would reject those limitations.[8] They have no basis in science or in mathematics.
In this case, the expert testified that, based on her interpretation of the Joint AMA-ABA Guidelines, a probability of paternity below 90% would not be useful. In fact, the recommended verbal predicates suggest only estimates below 80% are "not useful," while the utility of estimates in the 80% to 90% range is "undecided." Joint AMA-ABA Guidelines, supra, 10 Fam. L.Q. at 262. Nevertheless, if an expert wants to claim that the scientific community has concluded that a probability of paternity that is less than 95% is unreliable or irrelevant, the trial court of course will evaluate that testimony in a Rule 8 hearing. Although we doubt that there will be any such testimony, or that if presented, that it will be persuasive, we note that those proposed conditions show the extent to which the use of the Bayes' formula is not credited in the courtroom environment. But cf. National Institute of Child Support Enforcement, U.S. Department of Health and Human Services, Essentials *515 for Attorneys in Child Support 366, 376 (1986) (noting use of Bayes' Theorem in calculating probability of paternity "is method most familiar to the American court system").
As a practical matter, the complex issues raised by admitting evidence of HLA test results in paternity and criminal cases are likely to become less and less important, indeed totally irrelevant, once acceptable scientific standards permit a broader forensic use of DNA "fingerprinting." It is generally accepted that DNA identifying techniques will exclude from consideration the DNA sequences of all but identical twins, making DNA testing the functional equivalent of a fingerprint. Brad R. Byers, Comment, DNA Fingerprinting and the Criminal Defendant: Guilty or Innocent? Only His Molecular Biologist Knows for Sure, 58 Ohio N.U.L.Rev. 57, 58 (1989); Eric S. Lander, DNA Fingerprinting on Trial, Nature 501 (June 1989). The complexity of the DNA testing procedures, and the apparently largely unregulated practices of those genetic laboratories equipped to conduct DNA testing in criminal cases, raise questions at this time concerning the potential reliability of such evidence in establishing paternity in criminal cases. Leigh C. Lawson, Comment, DNA Fingerprinting and Its Impact Upon Criminal Law, 41 Mercer L.Rev. 1453, 1456 (1990); Peter J. Neufeld & Neville Colman, When Science Takes the Witness Stand, Scientific American 46, 53 (May 1990). But see United States v. Jakobetz, 955 F.2d 786, 799-800 (2d Cir.1992) (affirming admissibility of DNA profiling evidence in criminal cases); Ronald J. Richards, Comment, DNA Fingerprinting and Paternity Testing, 22 U.C.Davis L.Rev. 609, 635-37 (1989) (advocating use of DNA fingerprinting to establish paternity).
V
Use of Probabilistic Analysis in Criminal Trials
The fundamental objections to the use of Bayes' Theorem to establish probability of paternity are both mathematical and *516 jurisprudential. The mathematical objections are suggested above: they raise doubts about the validity of applying a formula designed for statistical probabilities to an assessment of proofs by the jury that, although it can be expressed as a probability, is in fact simply a statement of the strength, or weakness, of the jury's belief in a fact, forced into the mold of a statement of probability. The "prior probability" that is the basis for the Bayes' Theorem calculation is truly no prior probability at all so far as the jury is concerned. Jurors simply believe, at whatever stage of the proceedings they have to make the assessment, that defendant is guilty or not, and have varying degrees of confidence in that belief. If forced to and they will be, if Bayes' Theorem is admitted they can express that degree of confidence as a "prior probability," the defendant's probability of guilt is 80%, 50% or 10%. The question remains whether Bayes' Theorem, when applied to such a non-statistical probability estimate, is likely to yield reliable results. That is one of the issues the trial court will deal with in its Rule 8 hearing.
The jurisprudential objection is different. It says that even if reliable, this factfinding method should not be used by juries except in the most unusual situations, or where the law explicitly requires a calculation of probabilities. In criminal cases, those objections go beyond the possibility of confusing or overwhelming the jury with mathematical complexities. They go to the heart of the jury's function the finding of guilt beyond a reasonable doubt.
These jurisprudential (and other) concerns are set forth in Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329 (1971). Writing concededly in reaction to a perceived risk at the time that mathematics was about to take over the jury's factfinding role, Professor Tribe persuasively argued that probabilistic analysis should but rarely be allowed to aid factfinding in criminal trials and Bayes' Theorem was very much in mind. Although expressly rejecting a per se exclusion of such evidence, his *517 position comes very close to that. Id. at 1354-55. Some of his arguments, expressed as well by others, must be dealt with.
One argument notes the possibility that the jury will use the associative evidence the probability of exclusion twice. First, having heard defendant has the blood-tissue type that the guilty suspect must have and that only one in one hundred have it, the jury will include that fact in its initial assessment of guilt, i.e., in its determination of the prior probability. When Bayes' Theorem is then applied to that prior probability to reach a conclusion of probability of paternity, the calculation will necessarily again factor in the probability of exclusion, because it is part of the Bayes' Theorem probability of paternity calculation, impermissibly using the exclusionary percentage twice. Id. at 1366-68.
Second, because Bayes' Theorem will be introduced in the State's case and because its use depends on the jury's prior-probability finding, the jury inevitably will be impelled to focus, during the State's case, before all of the evidence is in, on the probability of defendant's guilt. Professor Tribe notes the inconsistency of that result with the presumption of innocence, the jury, of course, required to regard defendant as innocent until found guilty beyond a reasonable doubt. Id. at 1368-71. Simply put, the argument is that the use of that calculation during the State's case impermissibly violates the jury's obligation to keep an open mind until all of the evidence is in and deliberations start.
Third, the jury is implicitly asked to find defendant guilty beyond a reasonable doubt even though the probability of paternity itself has a quantifiable element of uncertainty and doubt. Id. at 1375. Stated otherwise, even if the probability of paternity is 95%, does our system of criminal justice encourage a jury to find guilt beyond a reasonable doubt when there is a 5% chance that defendant is innocent?
Finally, the argument notes the counter-intuitive impact of Bayes' Theorem and the probability of paternity that can result. *518 The ability of the calculation to convert a very low jury estimate based on the facts into an extremely high one after the formula is applied is one such counter-intuitive result. The formula's ability to declare both the defendant and a suspect (with the same blood type) as each having a 95% probability of being the father is another. With such counter-intuitive results persuasively supported by expert testimony, the fear is the jurors will lose sense of the need to use their intuition, common sense, and sense of community values. Tribe likens the process to a return to trial by battle. Id. at 1376-77.
Although some of these issues, both mathematical and jurisprudential, may ultimately become issues of law for this Court, we prefer to commit their resolution initially to the trial court where they will be subjected to adversarial testing. We are inclined to believe that appropriate jury instructions can cure all of them, or at least diminish their risk to the point that the advantages of the expert's calculation outweigh these risks, assuming the opinion is otherwise admissible.
Given the guidance of the trial court and the argument of competent counsel, we think juries will be able to cope with the complexities and pitfalls of this kind of probabilistic evidence. Although the dispute on this subject presumably continues, we are not dealing here with some abstruse application of mathematics: the probability of paternity opinion is regularly and routinely used in civil cases and apparently favored if not mandated by both our Legislature and the federal government. The probability of paternity opinion is also routinely used by laboratories that perform this blood-tissue testing. We recognize, however, that if Bayes' Theorem as applied to blood-tissue testing is admitted in this case, it is presumably admissible in any criminal case involving such blood-tissue testing.
VI
Summary
If the State in a criminal case offers expert proof of the probability of paternity, the trial court should hold a Rule 8 *519 hearing. That hearing should focus on whether the relevant scientific community generally accepts the probability of paternity opinion as a reliable indicator of paternity. The trial court should also inquire concerning the appropriateness of the admissibility of probability of paternity opinions in criminal cases. For while that is ultimately a decision reserved to the court, the differing views on the subject will help expose the issues surrounding this testimony and will aid the court in its determination.
In ruling on admissibility, the trial court should carefully consider the kind of testimony that the jury will hear. For example, if admissibility appears to depend on the validity of applying Bayes' Theorem to a non-numerical jury assessment of the probability of paternity, the argument and testimony concerning that question of validity may be beyond the understanding of the jury. If that is the case, the trial court will have to determine the consequences including possibly excluding the opinion or imposing practical limitations on trial testimony concerning the validity issue. Assuming it is concerned with potential confusion and prejudice, the court may, in a Rule 4 hearing, ultimately have to weigh the advantages and disadvantages, the costs and benefits, of the admission of the probability of paternity opinion. This necessarily will require a determination of whether substantially the same benefit without some of the costs can be gained through other evidence, e.g., the exclusionary percentage.
If the trial court allows this testimony the opinion of probability of paternity other matters, including conditions on its admissibility, should be considered. The expert should be qualified not only as a geneticist but also as a mathematician (which the expert in this case was not); or, alternatively, a mathematician should testify as well as the geneticist concerning the formula. The expert should explain the formula and indicate what it means, but should never be allowed to state that "in my opinion the probability of paternity ..." is a *520 particular percentage. No verbal predicate should be stated in any way, not even a reference to the verbal predicates approved by the Joint AMA-ABA Guidelines (e.g., "very likely," "likely"). A range of possible prior probabilities should be presented to the jury, along with the probability of paternity applicable to each, resulting from the formula. The jury should be made aware of the formula's ability, given high exclusionary percentages, to convert low prior probabilities into extremely high probability of paternity opinions. The jury should also be informed, where appropriate, of other counter-intuitive results the formula might produce. And, as in all other cases, the jury should be told that it need not accept the expert's testimony, that it may reject it either in whole or in part, that it is simply offered to help it in the evaluation of the impact of the blood-tissue evidence and the exclusionary percentage. Finally, the jury must be instructed that the ultimate question whether defendant, beyond a reasonable doubt, had intercourse with the victim, or, its equivalent in this case, whether defendant, beyond a reasonable doubt, is the father is for the jury and only the jury to determine; that issue must be determined as stated "beyond a reasonable doubt"; and that no mathematical formulation can relieve it of the obligation to make that determination. The formula, the probability of paternity, all of these things, along with all of the other evidence, are there to aid the jury in its ultimate fact-finding obligation. That obligation, however, does not change.
Some of the above guidelines may be applied to civil cases where paternity is disputed, but we do not intend by this opinion to complicate or make more difficult the accomplishment of the apparent intent of the Legislature, namely, to enable the State or the mother to readily establish paternity through the use of both the exclusionary percentage and the probability of paternity opinion. That issue is not now before us.
In conclusion, we agree with the Appellate Division's reversal of the conviction: the probability of paternity opinion was *521 improperly admitted as presented in this case. On remand the trial court will decide that issue, if the offer is again made, considering the matters mentioned in this opinion. As for the harmless error argument, it is forceful, for it is almost inconceivable on this record that the jury would find a prior probability of less than 50%. Nevertheless this is a criminal case, and given the novelty of the testimony, the mathematics involved, and the very high estimate of the probability of paternity opinion, we are not satisfied to call its admission harmless error.
We affirm the judgment of the Appellate Division. We remand the matter for a new trial in accordance with this opinion.
For affirmance and remandment Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI, and STEIN 7.
For opposition None.
NOTES
[1] HLA types correspond to molecules, known as antigens because they react to specific antibodies found in blood as well as on all cells. The production of these antigens is directed by closely-linked genes, known as haplotypes, which are almost always passed as a unit from parent to child and exhibit a substantial number of variations in human population. D.H. Kaye, The Probability of an Ultimate Issue: The Strange Case of Paternity Testing, 75 Iowa L.Rev. 75, 88 (1989) ["Kaye, Probability of an Ultimate Issue"].
To illustrate how the HLA system works in identifying paternity: The child in this case had phenotypes (observable traits corresponding to some set of underlying genotypes) A2 A28 B45 B53, and the mother had HLA types A28 A30 B53 B61. These symbols refer to distinct antigens expressed by genes at two locations (the A locus and the B locus) in the human genome. These two genes, located next to one another on the same chromosome, typically are inherited as a haplotype, one from each parent. Id. at 88. Thus, the child receives one pair of A and B genes from both the mother and from the father. Because the mother and child have types A28 B53, the child must have inherited the haplotype A2 B45 from the father. Any man who did not possess this obligatory haplotype (A2 B45) could be excluded as a possible father. The HLA test showed that defendant's phenotype was A2 A28 B35 B45, making him a possible father because he possessed the obligatory haplotype. The expert in this case testified that after factoring in the results of the HLA and other blood tests, the probability of exclusion was derived by consulting a table of haplotype frequencies that showed that only 1% of the relevant male population have the inculpatory blood and tissue type, and that the father is found only in that group. Thus, 99% of the relevant male population is excluded and could not be the father.
[2] The expert nowhere explained how she specifically arrived at the calculation that led to the "probability of paternity" figure. Our understanding of the mathematics suggests that the actual exclusionary figure used was not 1% but rather 3.57%. Had she in fact used a 1% exclusionary figure, the probability of paternity would have been 99.01%, not 96.55%.
[3] The 96.55% probability corresponds to odds of 28 to 1 in favor of defendant being the father instead of the 999 to 1 odds that he is not the father. The 28 to 1 odds correspond to 28 out of 29 chances, a probability of 96.55%.
Since the incidence of different blood groups, as well as HLA types, varies with race and to a lesser extent geography, gene-frequency tables are derived from population studies of different racial groups. The relevant population considered by the expert in this case was the North American black male population. Unless it was conceded that the father had to be black, it is not clear why such a limitation was used, and the expert's opinion, as well as most articles on the subject, fails to explain this common practice. In this case there was no prejudice because of the blood and tissue types involved; both the exclusionary figure and the probability of paternity percentage would have been higher if the entire population rather than just the black population had been used.
[4] The expert indicated that her results were subject to a sampling error of 396. Her explanation of the impact of that error, however, was less than complete indeed, on this record, beyond understanding. She noted that the 1% exclusion rate was based on a sample of 1,900 men, only 19 of them having the type of blood and tissues of a potential father. Conceding the 3% margin of error, she noted that would change the 19 to either 16 or 22 men, depending on which way the error went. But how 3% translates into that difference is impossible to determine. If the correct number were 16, then the exclusionary rate, instead of .01, would be .0084, 16% less than .01, yielding an even greater exclusionary figure and a substantially greater probability of paternity. If the correct number is 22, rather than 19, the exclusionary percentage would be about .0116, rather than .01, a 16% increase, and a correspondingly lower probability of paternity. The margin of error based on sampling, therefore, was acknowledged but on this record not at all adequately explained.
[5] Obviously there are other differences between this case and Landrigan concerning the use of expert testimony. In Landrigan, the experts apparently could not have concluded that asbestos was the cause of death without using the epidemiological statistical evidence. In this case, the blood and tissue tests and the accompanying expert opinion based on Bayes' Theorem are not essential; there is more than sufficient evidence to warrant submission of the case to the jury. What is added, of course, is evidence in the form of an expert's opinion that not only supports a guilty verdict but, if credited, almost compels it.
[6] The statute apparently was enacted six months after New Jersey inadvertently missed the initial deadline for state compliance with new federal welfare requirements. Continued noncompliance would have resulted in the annual loss of an estimated $20 million in federal funds to New Jersey. Paternity Testing Bill Is Sent to Governor, Star-Ledger, May 22, 1990, at 46.
[7] The individual state welfare agencies are themselves responsible for contracting with "laboratories which perform ... legally and medically acceptable genetic tests which tend to identify the father or exclude the alleged father." 45 C.F.R. § 303.5(c) (1991). In New Jersey, the Division of Economic Assistance within the State Department of Human Services has established specifications, which the State's approved testing laboratories are obliged to follow in conducting HLA and other genetic testing. Notification of Award of Annual Contract for Genetic Testing, State of New Jersey, Dep't of Hum. Serv., Div. of Economic Assistance, for Contract Period Nov. 1, 1990, to Oct. 31, 1993. At a minimum, these tests must satisfy the current standards of, inter alia, the Joint AMA-ABA Guidelines. Id. at ¶ 6.1.7(1). As discussed above, these Guidelines recommend the use of the fifty-fifty assumption in calculating the probability of paternity percentage. Joint AMA-ABA Guidelines, supra, 10 Fam.L.Q. at 262.
[8] Professor Kaye sharply refutes the merits of these "rules of evidence." Kaye, Probability of an Ultimate Issue, supra, 75 Iowa L.Rev. at 83-87. The particular evidentiary rules imposed by these courts are unlikely to have much effect on the admissibility of the probability of exclusion, however, because the testing procedures of most laboratories already, on average, exclude more than 90% of the population. Id. at 98. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1214279/ | 500 S.E.2d 601 (1998)
232 Ga. App. 165
WARE
v.
The STATE.
No. A98A0175.
Court of Appeals of Georgia.
March 26, 1998.
Reconsideration Denied April 13, 1998.
*602 Ralph L. Phillips, for appellant.
Charles M. Ferguson, District Attorney, Keith W. Day, Assistant District Attorney, for appellee.
HAROLD R. BANKE, Senior Appellate Judge.
Winnie Ware was convicted of reckless endangerment to children and possession of marijuana with intent to distribute. On appeal, she enumerates eight errors.
This case arose after law enforcement authorities arrested Christopher Irby, Ware's boyfriend, upon discovering two packages of cocaine, over $1,000 in cash and a motel room key on his person. Shortly thereafter, the officers decided to investigate the room where Ware and her six-year-old daughter were also staying. The authorities knocked; Ware asked who it was; and they identified themselves, unlocked the door and entered. The officers immediately discovered Ware, her young daughter, and the smell of marijuana smoke. After learning of Irby's arrest, Ware consented to a search of the room, stating it was his room, not hers. During the search, the authorities found over two ounces of marijuana, several sizes of baggies, and some marijuana butts in an ashtray. Held:
1. The trial court did not abuse its discretion in denying Ware's motion to sever the drug charge from the reckless endangerment charge. Varnadoe v. State, 227 Ga. App. 663, 664(1), 490 S.E.2d 517 (1997). The crimes and acts were so intertwined that some of the same evidence would have been required at separate trials on each charge, a valid reason for joinder of the offenses. Johnson v. State, 257 Ga. 731, 733(2)(c), 363 S.E.2d 540 (1988); Davis v. State, 159 Ga. App. 356(1), 283 S.E.2d 286 (1981).
In her brief, Ware attempts to enlarge her enumeration by arguing that the trial court erred by failing to give a promised limiting instruction upon the introduction of a similar transaction which related only to the drug charge. Because this issue was not properly raised in the enumerations of error, it will not be addressed. Guest v. State, 229 Ga.App. 627, 628(1), 494 S.E.2d 523 (1997).
2. Ware challenges the trial court's decision to reseat on the petit jury several members of the venire she had peremptorily stricken. After Ware used 11 of her 12 strikes to remove whites from the jury during voir dire, the State asserted a *603 challenge under Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), which applied Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) to criminal defendants' peremptory strikes. Because the State successfully established a prima facie case of purposeful racial discrimination, Ware was required to "set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of the peremptory strike." Turner v. State, 267 Ga. 149, 151(2), 476 S.E.2d 252 (1996). The trial court determined that Ware failed to present articulably race-neutral reasons for six of the eleven challenged strikes.
This decision is entitled to "great deference" and must be upheld unless clearly erroneous. Id. Explanations which are so implausible or fantastic as to be pretextual may provide a basis for finding that an improper discriminatory motive underlay the strike. Id.
Ware's counsel argued that he struck one venireperson because his family was racist, another because Ware felt uncomfortable when she looked at him, a third because she had grandchildren the same age as Ware's daughter and worked with a racially biased individual, a fourth because Ware "sense[d] something from her," a fifth because of the place he worked and a "predisposition of bias towards [sic] the blacks," and a sixth because she was a white, middle-class, very strict farmer's wife. He also argued that because his client was African-American, "a jury of her peers should be predominantly black."
Four of these explanations are not race-neutral on their face. The remaining two, based solely on Ware's professed intuition about the venire members, are not case-related, clear or reasonably specific. In these circumstances, we cannot say the trial court clearly erred in rejecting Ware's explanations.
3. Ware maintains the admission of a second officer's testimony about the similar transaction was sufficiently prejudicial to require reversal. The second officer's testimony established the amount of currency and contraband seized during the similar transaction, information the State's initial witness was unable to provide.
Ware offers no authority supporting her argument, and we have found none. To the contrary, in numerous cases more than one witness has offered testimony on the same similar transaction. See, e.g., Blige v. State, 205 Ga.App. 133, 134(2), 421 S.E.2d 547 (1992); Carter v. State, 199 Ga.App. 843, 844(2), 406 S.E.2d 238 (1991); Norton v. State, 199 Ga.App. 27, 28, 403 S.E.2d 884 (1991). The testimony at issue was not sufficiently cumulative or prejudicial to warrant reversal. Because Ware's additional argument regarding Exhibit 9 was not enumerated as error, we decline to address it. Guest, 229 Ga.App. at 628(1), 494 S.E.2d 523.
4. Ware failed to support her remaining enumerations with any argument or citation of authority. They are therefore deemed abandoned. Court of Appeals Rule 27(c)(2); Sprinkles v. State, 227 Ga.App. 112, 114(3), 488 S.E.2d 492 (1997).
Judgment affirmed.
BIRDSONG, P.J., and JOHNSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1459483/ | 817 F.Supp. 1103 (1993)
MAJOR LEAGUE BASEBALL PROPERTIES, INC. and Los Angeles Dodgers, Inc., Plaintiffs,
v.
SED NON OLET DENARIUS, LTD., d/b/a The Brooklyn Dodger Sports Bar & Restaurant, Bums, Inc., d/b/a The Brooklyn Dodger, David Senatore, Richard Picardi and Kevin Boyle, Defendants.
No. 90 CIV 2170 (CBM).
United States District Court, S.D. New York.
April 6, 1993.
*1104 *1105 *1106 *1107 *1108 Willkie Farr & Gallagher, New York City by Robert J. Kheel, William J. Borner, Stacey E. Blumberg, for plaintiffs.
Ronald G. Russo, Fischetti & Russo, New York City (John M. Keene and H. John Campaign, Graham, Campaign & McCarthy, P.C., New York City, of counsel), for defendants.
OPINION
MOTLEY, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. INTRODUCTION
Plaintiffs, Major League Baseball Properties, Inc. ("Properties") and Los Angeles Dodgers, Inc. ("Los Angeles"), allege in their Amended Complaint[1] that the conduct of the three corporate defendants, Sed Non Olet Denarius, Ltd., d/b/a The Brooklyn Dodger Sports Bar and Restaurant ("SNOD"), BUMS, Inc., d/b/a The Brooklyn Dodger Sports Bar and Restaurant ("BUMS"), and 9506, Inc., d/b/a The Brooklyn Dodger ("9506") (hereinafter collectively "The Brooklyn Dodger"), and the conduct of the three individual defendants, David Senatore, Richard Picardi and Kevin Boyle, constitute: a) an infringement upon the rights of plaintiffs' trademarks in violation of 15 U.S.C. §§ 1114 and 1117; b) a wrongful appropriation of plaintiffs' trademarks in violation of 15 U.S.C. § 1125 c) a violation of plaintiffs' common law trademark and property rights; d) a violation of plaintiffs' rights under the New York General Business Law § 368-d; e) unfair competition; and f) the intentional use by defendants of a counterfeit mark in violation of 15 U.S.C. § 1117(b).
Each of these six causes of action is alleged to flow from defendants' use of the words "The Brooklyn Dodger" as the name and servicemark of the restaurants which defendants have operated in Brooklyn, New York, beginning in March 1988. Plaintiffs initially sought permanent injunctive relief, an accounting of profits, the destruction of physical items containing the allegedly infringing marks, monetary damages, and attorneys' fees.
By their Answer and Amended Answer defendants denied any infringement of plaintiffs' alleged right to use a "Brooklyn Dodger" trademark. Defendants also pleaded the defenses of abandonment by plaintiffs of any *1109 "Brooklyn Dodgers" mark which plaintiffs may have owned at one time, as well as laches. The abandonment defense was premised upon the plaintiffs' failure to make any commercial or trademark use of the "Brooklyn Dodgers" name for at least 25 years after Los Angeles left Brooklyn in 1958. The laches defense was premised upon the fact that plaintiffs waited for more than a year and a half after learning of defendants' use of the allegedly infringing trademark before advising defendants of any alleged infringement. During this period defendants expended substantial resources and monies in establishing their restaurants in Brooklyn, New York. Defendants further pleaded the defense of unclean hands.
Finally, in their Amended Answer, defendants counterclaimed for the cancellation of various trademark registrations for "Brooklyn Dodgers" filed by plaintiffs after defendants' application to register the "Brooklyn Dodger" servicemark was filed on April 28, 1988.[2] These cancellations are sought on the ground that plaintiffs' registrations: a) falsely and deceptively suggest and imply a connection between plaintiffs and the Borough of Brooklyn which has not existed since 1958; b) inherently and directly misrepresent the origin of plaintiffs' goods and services as Brooklyn, New York when in fact this is untrue, in violation of 15 U.S.C. § 1052; and c) plaintiffs' use of a "Brooklyn Dodgers" mark suggests an association with defendants which does not exist, in violation of 15 U.S.C. § 1125(a).
On July 29, 1991, plaintiffs filed a motion for a preliminary injunction seeking to enjoin the use of the "Dodger" and "Brooklyn Dodger" name and defendants' logo in connection with the Canarsie establishment. (Tr. of 3/31/92 Hearing at 72; Tr. 707)
On March 31, 1992, the Honorable Kimba M. Wood of this court, to whom this case was then assigned, conducted a hearing. The parties submitted memoranda of law and affidavits in connection with the motion for a preliminary injunction. The court granted plaintiffs' motion for a preliminary injunction and enjoined defendants from using the mark the "Brooklyn Dodger" and the word "Dodger" written in standard athletic script as now used by defendants in connection with their third restaurant. (Tr. of 3/31/92 Hearing 69)
However, the court denied plaintiffs' application for summary judgment. Plaintiffs withdrew all claims for legal damages set forth in paragraph 4 of their Prayer for Relief, leaving only their equitable claims for injunctive relief (Prayer for Relief ¶ 1) and the destruction of all physical objects which make use of the "Brooklyn Dodger" mark (Prayer for Relief ¶ 3) and an accounting on their Lanham Act and common law claims. (See correspondence between counsel dated April 14, 16 and 17, 1992) (Tr. 2) Plaintiffs also seek an award of their attorneys' fees under the Lanham Act and common law. Following a preliminary hearing, a bench trial commenced on May 18, 1992 and continued until May 21, 1992. At the close of the trial the court reserved decision on all issues presented and requested that the parties submit proposed Findings of Fact and Conclusions of Law not later than July 17, 1992.
II. FINDINGS OF FACTS
After hearing the evidence and weighing the testimony and exhibits received in evidence, as well as the credibility of the witnesses, the court makes the following findings of fact:
A. The Parties
Plaintiff Properties is a corporation with offices and its principal place of business in New York, New York. It is the official trademark licensing, publishing, and marketing arm of the 26 Major League Baseball Clubs (the "Major League Clubs"). Properties is also charged with the responsibility of protecting the trademarks of these teams. (Trial Transcript "Tr." at 41)
Plaintiff Los Angeles is a corporation with offices and its principal place of business in Los Angeles, California. It is the owner of the Los Angeles Dodgers, a professional *1110 baseball team which, since 1958, has played baseball in Los Angeles, California under the name the "Los Angeles Dodgers." (Plaintiffs' Exhibit "PX" 17) Prior to 1958 the same professional baseball team played baseball in Brooklyn, New York and were known as the "Brooklyn Dodgers" or the "Dodgers."
In 1958, the team moved the site of its home games from Brooklyn to Los Angeles. (Tr. 252-53) At that time, the corporation was known as the Brooklyn National League Baseball Club, Inc. which owned the Brooklyn Dodgers or the Dodgers. It pointedly changed its name to Los Angeles Dodgers, Inc. (Tr. 259-60) Since then the team known as the "Los Angeles Dodgers" has never played baseball in Brooklyn, New York. (Tr. 332).
By agreement with the Major League Clubs, Properties has been granted the exclusive right to market, license, publish, publicize, promote nationally, and protect the trademarks owned by the Major League Clubs, including those owned by the Los Angeles Dodgers. (Tr. 41, 52-53, 116-17)
Properties' licensing activities on behalf of the Major League Clubs have evolved and expanded over time. In the early 1980s, the Major League Clubs were responsible for licensing on their own, with some additional baseball-wide licensing provided by Properties. In the mid-1980s, by agreement with the Major League Clubs, all of the retail licensing activities of the Major League Clubs were consolidated within Properties. (Tr. 41-42)
Over 400 licensed manufacturers sell more than 2,500 different Major League Baseball licensed products. (Tr. 57) The range of products includes apparel, such as caps and T-shirts, trading cards, games, electronic items, novelties and accessories, and youth "Little League" merchandise.
In 1986, retail sales of licensed Major League Baseball merchandise were approximately $200 million. (PX 16 at 11) By 1991, retail sales of licensed Major League Baseball merchandise were in excess of $2 billion. (Tr. 55-56) Properties, however, receives only a royalty payment on the wholesale price of these products. (Tr. 55) After trial, in response to the court's request for information concerning the amount of sales attributable to commercial use of the "Brooklyn Dodgers" mark after 1981, plaintiffs responded that precise figures could not be provided. Specifically, plaintiffs stated:
... Properties' records from the 1980s regrettably do not permit a precise breakdown of sales of goods bearing a specific trademark. As a result, figures representing sales of goods bearing the Dodgers' marks incorporating the word Brooklyn were, in most instances, subsumed within overall sales figures of merchandise bearing the Dodgers' marks, and not separately itemized. Recently, however, we have been accumulating more accurate records regarding sales of goods bearing individual Club trademarks. Based on this information and our general knowledge of our products, it is our best estimate that approximately $9 million worth of goods bearing the Dodgers' marks incorporating the word Brooklyn were sold in 1991.... we have contacted many of Properties' licensees, but unfortunately their records also do not permit us to obtain a more precise determination of annual retail sales during the 1980s of good bearing specifically the mark "Brooklyn Dodgers," separate and apart from retail sales of goods bearing the Dodgers' trademarks as a group.
(See Affidavit of Richard E. White, sworn Sept. 11, 1992 at 5-6)
In addition to its licensing and marketing efforts, Properties seeks to prevent infringement of the trademarks of the Major League Clubs. (Tr. 71-72)
Properties seeks to protect the Major League Clubs and retailers from unfair competition by counterfeiters, to ensure that consumers are not confused as to which products are authorized by the Major League Clubs, and to ensure that only safe, quality products reach consumers. (Tr. 73-74)
To enforce the trademark rights of the Major League Clubs, Properties relies on counsel, relies on the Clubs, polices and investigates the market itself, and relies on licensees. (Tr. 75) At times, Properties commences *1111 litigation to prevent infringement at substantial expense. (Tr. 75-76)
Defendant SNOD is a corporation organized and existing under the laws of the State of New York and has its office and principal place of business at 7509 Third Avenue, Brooklyn, New York. (Tr. 480) On March 17, 1988 SNOD began doing business as a restaurant under the name "The Brooklyn Dodger Sports Bar and Restaurant." (Tr. 480)
Defendant BUMS was a corporation organized and existing under the laws of the State of New York and had an office and principal place of business at 360 Coney Island Avenue, Brooklyn, New York. On February 6, 1989 BUMS began doing business as a restaurant under the name "The Brooklyn Dodger Sports Bar and Restaurant." (Tr. 646) In November 1990, for reasons wholly unrelated to this litigation, BUMS ceased doing business as "The Brooklyn Dodger Sports Bar and Restaurant."
Defendant 9506 is a corporation organized and existing under the laws of the State of New York and has its office and principal place of business at 9505 Avenue L, Brooklyn, New York. (Tr. 384) On July 1, 1991, to replace the restaurant previously operated by BUMS, 9506 began doing business as a restaurant under the name "The Brooklyn Dodger Sports Bar and Restaurant."
All three corporate defendants, at various times during this litigation, have been engaged in providing restaurant and tavern services to the consuming public in Brooklyn, New York. This is the only business in which the defendants are engaged. (Tr. 383)
Defendant David Senatore is an owner of all three corporate defendants and assisted in forming the businesses. (Tr. 383) Defendant Richard Picardi is a resident of New York, New York, an owner of all three corporate defendants and assisted in forming the businesses. (Tr. 383) Defendant Kevin Boyle is a resident of Brooklyn, New York, an owner of BUMS and 9506 and assisted in forming all three businesses. (Tr. 383) These businesses were to be the livelihood of Senatore, Picardi, and Boyle. (Tr. 521, 623, 706)
B. The Brooklyn Dodger Restaurants
In 1987, the individual defendants, together with Brian Boyle, defendant Kevin Boyle's brother, decided to open a restaurant in Brooklyn, New York. (Tr. 483, 516-517, 599-600, 740).
It was the individual defendants' decision that their restaurants would emphasize the multiple themes of fun, sports and Brooklyn. Their intention was to create a nostalgic setting where Brooklynites could relax and reminisce about times gone by. (Tr. 526, 534, 607, 742; DX C)
They initially chose to name their establishment "Ebbets Field" after the former baseball park located in Brooklyn, New York in which a baseball team know as the "Brooklyn Dodgers" played baseball until October, 1957. (Tr. 499, 518, 601, 740-41)
To assure themselves that the use of this name would not conflict with any other person's use of it, the individual defendants commissioned a trademark search for the name "Ebbets Field" in April, 1987. (Tr. 518, 522, 602, 741; DX U) Although this search established that no trademark registration for "Ebbets Field" had been filed, the individual defendants learned that a small restaurant, not unlike the one they hoped to open in Brooklyn, was operating in Hicksville, New York. (Tr. 524, 604-605, 741-64)
In light of this fact, and in an attempt to avoid any possible legal entanglements, the individual defendants chose not to use the name "Ebbets Field" and continued their search for another name. (Tr. 520, 525-26, 561, 607, 646-47, 765)
The individual defendants were aware that there once was a baseball team known as the "Brooklyn Dodgers" which had once played in Brooklyn, New York. Defendants also knew that in 1958 that team left Brooklyn and relocated to Los Angeles, California.
The defendants knew that the departure of the "Brooklyn Dodgers" in 1958 had been accompanied by monumental hard feelings in the Borough of Brooklyn. In fact the relocation was one of the most notorious abandonments in the history of sports. (Tr. 527, 563) At the time defendants selected their logo, they were aware that Los Angeles owned *1112 federal trademark registrations for the word "Dodgers." (Tr. 492, 562, 659, 735-36) However, at no time during their consideration of the "Brooklyn Dodger" name did the individual defendants have any reason to believe that "The Brooklyn Dodger" mark was being used by Los Angeles, and certainly not for restaurant or tavern services. (Tr. 526-27) When considering the use of the "Brooklyn Dodger" mark, at no time was there any discussion among the individual defendants and Brian Boyle about trading on the goodwill of Los Angeles in Brooklyn. (Tr. 528) Indeed, non-party witness Brian Boyle, a life-long Brooklyn resident, testified that, given the acrimonious abandonment of Brooklyn by Los Angeles, the idea of trading on Los Angeles' "goodwill" in Brooklyn is almost "laughable." (Tr. 529)
Nevertheless, acting in good faith, the individual defendants, again desirous of avoiding any legal entanglements, commissioned yet a second trademark search, this one for the name "Brooklyn Dodger" in October, 1987. (Tr. 489, 609-11, 621-22, 744; PX 28) While defendants were aware at the time they selected their logo that Los Angeles owned federal trademark registrations for the word "Dodgers,"[3] their second trademark search established that no registration of any "Brooklyn Dodger" mark had ever been filed. (Tr. 492, 532, 562, 659, 735-36; PX 28)
Accordingly, in October, 1987 the individual defendants formed the corporate defendant SNOD for the purpose of operating a restaurant. SNOD began doing business with the public on March 17, 1988 as "The Brooklyn Dodger Sports Bar and Restaurant." (Tr. 480)
Having invested the time, money, and effort in founding this restaurant and having exercised all reasonable diligence to satisfy themselves that no one was using a "Brooklyn Dodger" trademark for restaurant and tavern services, and that no one had filed a registration for this trademark for use in any other field, the principals of SNOD sought to protect their interests in their new name. (Tr. 571) Accordingly, on April 28, 1988, an application to register a composite design mark incorporating the term "The Brooklyn Dodger" as a servicemark for restaurant and tavern services was filed with the United States Patent and Trademark Office in Washington, D.C. (Tr. 571, 630, 637, 728; PX 37)
C. Defendants' Use of the Trademark
In connection with each of defendants' "The Brooklyn Dodger" restaurants, defendants make and/or made prominent use of the "Dodger" name and the "Brooklyn Dodger" name, with the word "Dodger" in stylized script, in the color blue, and in blue script. (PX 40 at 1, 27, 31-37, 41-44)
The defendants' composite design mark consisted of three words: "The," "Brooklyn" and "Dodger" are entwined with one another and with an impish character, designed by Lincoln Peirce, which was styled after the Charles Dickens' character, the "Artful Dodger" from the novel Oliver Twist, leaning against the "r" in "Dodger." (Tr. 165; PX 37, 38) Defendants, however, make significant use of their logo without the cartoon character to promote their business, including on merchandise such as apparel, in advertisements, on their letterhead and as part of their servicemark. (PX 32, 33 at 1, 34, 35; DX V; Tr. 674-79)
Defendants' logo is similar to Los Angeles' trademarks. The name "Brooklyn Dodgers" is similar to the name "Brooklyn Dodgers" as *1113 used by plaintiffs. The script used by the defendants in their logo is similar to that used in Los Angeles' trademarks. The color blue used by defendants is similar to the color blue used by and associated with Los Angeles' sports club in Brooklyn. The swash or tail of the word "Dodger" used by defendants is similar to that used in Los Angeles' trademarks in terms of style and length. (PX 2, 3, 58 at 2, 53 at 69; Tr. 227, 319, 430, 673-74, 682, 759)
The similarity of the parties' marks is further evidenced and emphasized by the fact that defendants use their logo in a sports-oriented atmosphere containing numerous references to baseball and the Brooklyn Dodgers. (See PX 40)
The similarity of defendants' logo to Los Angeles' trademarks as used prior to 1958 is further evidenced and emphasized by the fact that defendants, in selecting their name and creating their logo, intended to allude to the Brooklyn Dodgers baseball club and to track the script used by the Brooklyn Dodgers. (Tr. 486-89) Indeed, virtually every witness at trial, including the artist who designed defendants' logo and defendants' expert witness, testified to the similarity of the marks. (Tr. 115, 148-58, 167, 319, 430-31, 486-87, 569, 667-68, 684, 759; PX 53 at 69)
In selecting their logo, defendants intentionally sought to reproduce the Brooklyn Dodgers' trademarks. Indeed, the script for the defendants' logo was intentionally chosen by defendants to track the script used by the Brooklyn Dodgers. As one of defendants' former principals testified:
Q: ... The script for the Dodger restaurant, the Brooklyn Dodger restaurant, the script, that tracks that of the Brooklyn Dodger baseball team, doesn't it?
A: Yes.
Q: And that was intentional, wasn't it?
A: I imagine so ... We wanted a reference to the Brooklyn Dodgers baseball team, yes. (Tr. 569)
Defendants' cartoon character was intentionally selected to allude in part to the famous "Brooklyn Bum" character associated with the Brooklyn Dodgers. (Tr. 487-89; compare PX 40 at 6 (The Brooklyn Dodger bum) with PX 11 at 6 (the Brooklyn Dodgers bum)) In selecting their name, logo and cartoon character, defendants were intentionally alluding to the Brooklyn Dodgers. (Tr. 486-89, 569, 688) However, rather than tracing the allegedly infringing mark "Dodger" from any exemplar, Peirce testified quite clearly that "I drew it freehand. I drew it, I outlined it in a pen, a felt-tipped pen, and I think I colored it in." (Tr. 165) Peirce was paid $100.00 for his services. (Tr. 165, 684-86; DX J)
The exteriors of defendants' bars have signs and awnings bearing the Brooklyn Dodger logo. The "Dodger" portion of the sign outside of the Bay Ridge Brooklyn restaurant is in blue script with the "r" in the word "Dodger" continuing in a "swash" or tail which underlines the word "Dodger." (PX 40 at 1; Tr. 384)
Defendants and their employees wear or have worn shirts with defendants' "Brooklyn Dodger" logo or with "Dodger Staff" printed on them, the "Dodger" portion being in stylized script similar to Los Angeles' trademark for the mark Dodgers in cursive script. Defendants had these shirts designed and manufactured for their restaurants. (PX 31, 53 at 87, 54 at 94; Tr. 384-85) Defendants' sell and have sold or distributed apparel, including T-shirts and caps, bearing the name "Brooklyn Dodger." (PX 40 at 9; Tr. 386) Defendants have also sold or given to patrons bumper stickers and gift certificates bearing the "Brooklyn Dodger" logo. (Tr. 387)
Defendants have used the word "Dodger" alone without the word "Brooklyn" on merchandise, such as apparel bearing the logo "Dodger Staff," and on food products to promote their business, such as "Dodger Blue" Cheese, "Deep Dish Dodger" pizza, "Dodger Seafood Chowder," ribs with "Dodger Sauce," "Dodger Pee-Wee" pasta, and "The Duke" and "The Furillo" hamburgers (references to former Dodgers Pee Wee Reese, Duke Snider, and Carl Furillo). (PX 14, 31, 53 at 87, 54 at 94; Tr. 311, 385, 482, 654) Defendants also sell food products referring to the "bum" character associated with the Brooklyn Dodgers, such as "Bum's House Salad." (PX 14)
*1114 There is a replica of a Brooklyn Dodgers jersey and cap displayed inside defendants' restaurant. (PX 40 at 4) A baseball bat used by Brooklyn Dodgers player Jackie Robinson and baseballs autographed by Brooklyn Dodgers players are also displayed in defendants' restaurant. (PX 40 at 5; Tr. 386) A wall-sized mural of Ebbets Field, the Brooklyn ballpark of the Brooklyn Dodgers, dominates one wall in defendants' restaurant. (PX 40 at 5; Tr. 386) Photographs of Los Angeles and Brooklyn Dodgers players and newspaper articles referring to the Brooklyn Dodgers are displayed throughout defendants' restaurant. (PX 40) Defendants decorate their restaurant with cartoons depicting the "bum" character associated with the Brooklyn Dodgers. (PX 40 at 4, 6)
Defendants' menus and placemats reference the names of Brooklyn Dodgers players and the word "Dodger." (PX 14; Tr. 311, 385, 482, 654) Defendants have disseminated to the public corporate checks identifying the drawer as "The Brooklyn Dodgers" (with the "s"). (PX 45 at 4; Tr. 387, 389, 652-53)
Defendants have caused to be published a newspaper advertisement referring to their establishments as "The Brooklyn Dodgers" (with the "s"). (PX 34)
In February 1989, the individual defendants, through a second corporate defendant, BUMS, Inc., opened a second "The Brooklyn Dodger Sports Bar and Restaurant" on Coney Island Avenue, not far from defendants' initial establishment. The same logo and servicemark were used with respect to this restaurant.[4]
D. Plaintiffs' Use of the Trademark
Upon relocating its franchise to Los Angeles, California, plaintiff Los Angeles changed its corporate name from the "Brooklyn National Baseball Club, Inc." to "Los Angeles Dodgers, Inc." and began playing baseball under the same name. Of the 26 baseball teams currently playing baseball, no team plays under the name the "Brooklyn Dodgers." The only Dodger team currently playing baseball is the "Los Angeles Dodgers" (PX 17) which is the name the team has played under since its departure from Brooklyn in 1958. (Tr. 563)
Plaintiffs' use of the "Brooklyn Dodgers" mark was based upon its physical location, until October 1957, in Brooklyn, New York. However, in 1959, Los Angeles made prominent commercial use and reference to their Brooklyn heritage and trademarks in connection with the promotion of Roy Campanella Night, honoring the former Brooklyn Dodgers player and present employee. (Tr. 94-96, 266-67; PX 1 at 2, 22) Los Angeles made prominent use of their trademarks incorporating the word "Brooklyn" at their annual oldtimers games. (PX 1 at 37, 40; Tr. 270) Oldtimers games are commercial baseball exhibitions at which former players are honored and perform so that older fans can recall the past and younger fans can learn about the history of the Club. (Tr. 267-68)
In 1966, Los Angeles sent a cease and desist letter to a member of the Continental Football League to prevent it from infringing Los Angeles' trademark by calling itself the Brooklyn Dodgers. (PX 8; Tr. 287-89)
Since approximately 1967, Los Angeles has licensed manufacturers of hot dogs to sell a hot dog known as the Dodger Dog using the Los Angeles' trademarks (without the "s"). (PX 12, 13; Tr. 305-08) The wrapper for the Dodger Dog bears the word "Dodger" in blue script and is underlined. (PX 13A; Tr. 308) Other uses of the "Dodger" trademark by Los Angeles include the authorization of Aloma, Inc. to use Los Angeles' trademarks in the operation of the Dodger Pines Golf and Country Club, including its restaurant facilities. (PX 10, 11; Tr. 298) Displayed in that restaurant are an array of sports photographs and memorabilia referring to the Los Angeles Dodgers, including their Brooklyn *1115 history, such as a photograph of Ebbets Field and a pennant depicting the "bum" associated with the Brooklyn Dodgers. (Tr. 302-03; PX 11)
Los Angeles authorizes the Dodgertown Conference Center, located at the Los Angeles Dodgers' Spring training facility in Vero Beach, Florida, to use Los Angeles' trademarks to decorate a cafeteria and lounge. (PX 11; Tr. 298) Displayed in those facilities are sports photographs and memorabilia referring to the Los Angeles Dodgers, including their Brooklyn history. (PX 11; Tr. 302-03) Los Angeles has authorized the concessionaire at Dodger Stadium to decorate a restaurant, bar, and meeting facility called The Stadium Club at Dodger Stadium with photographs and/or paintings of Brooklyn Dodgers players. (Tr. 297) A restaurant owned by Bobby Valentine, manager of the Texas Rangers baseball club, is also authorized to use the trademarks of certain Major League Clubs. (Tr. 108)
One document which covered calendar year 1977, established that there was a licensing agreement between Major League Baseball Promotion Company, the predecessor to Properties, and a third party which was licensed to use the names, symbols, and logos of all major league baseball teams including "Los Angeles Dodgers." (DX F) No reference to the "Brooklyn Dodgers" is made in this agreement. However, on April 6, 1981, this licensing agreement was amended to include the name, symbols, logos, etc. of The "Brooklyn Dodgers" as well. (PX 19) Despite voluminous discovery in this case, at trial this document was the earliest licensing use of the "Brooklyn Dodger" name, following Los Angeles' departure from Brooklyn.
While plaintiffs have from time to time made use of their former "Brooklyn Dodgers" mark occasionally and sporadically for historical retrospective such as "Old Timer's Day" festivities, the documentary proof establishes that, following its departure from Brooklyn, Los Angeles' earliest licensing of the "Brooklyn Dodgers" mark occurred on April 6, 1981. (PX 19)
Between 1981 and March 17, 1988, the date of defendants' first use of their mark for restaurant and tavern services, plaintiffs used their "Brooklyn Dodgers" mark for a variety of purposes. Those uses were almost exclusively in the context of T-shirts, jackets, sportswear, sports paraphernalia and on various types of novelty items (i.e. on drinking mugs, cigarette lighters, pens, Christmas tree ornaments, wristbands, etc.). (PX 2, 16) However, none of these uses competes with defendants' use of the mark for restaurant and tavern services.
In 1981, plaintiffs licensed Eastport manufacturing Co. to merchandise T-shirts bearing, inter alia, the Brooklyn Dodger named and logo. (PX 19; Tr. 79-81)
In 1984, Los Angeles agreed to permit Martin Dorf to use photographs of the Brooklyn Dodgers as wall decorations in a restaurant in New Jersey called Burger Boys of Brooklyn. (PX 4; Tr. 78-79)
In 1985, Los Angeles authorized United Airlines to broadcast radio commercials which referred to the Brooklyn Dodgers. (PX 6; Tr. 282)
In 1986, Los Angeles agreed to license the Bank of New England to run an advertisement using the Los Angeles' trademarks incorporating the word "Brooklyn." (PX 5; Tr. 281) In 1986, Los Angeles entered into an agreement with Oxford University Press to permit them to use Los Angeles' trademarks incorporating the word "Brooklyn" in connection with a book. (PX 7; Tr. 283) In 1986, plaintiffs authorized Trench Manufacturing Co. to sell various items of merchandise bearing, inter alia, the Los Angeles' trademarks incorporating the word "Brooklyn." (PX 20; Tr. 82)
In March 1987, plaintiffs and Roman Art Embroidery Corp. entered into a licensing agreement to manufacture and sell caps bearing, inter alia, Los Angeles' trademarks incorporating the word "Brooklyn." (PX 21; Tr. 83-84)
In approximately 1986, Properties began promoting Los Angeles' trademarks incorporating the word "Brooklyn" together with other "oldtimer" trademarks of Major League Clubs (that is, trademarks that had not been worn on the playing field for at least five years) under the name "the Cooperstown *1116 Collection." (Tr. 83-86; see also PX 18)
Los Angeles licensed the use of their marks incorporating the word "Brooklyn" in connection with the television series "Brooklyn Bridge." (Tr. 296-97) Los Angeles licensed the Brooklyn Dodgers Hall of Fame, located in Brooklyn, to use Los Angeles' trademarks incorporating the word "Brooklyn." (Tr. 296-97)
Defendants did not select the name "The Brooklyn Dodger" for their restaurant until sometime after October 14, 1987, and did not open their first bar and restaurant using their "Brooklyn Dodger" logo until March 1988. (Tr. 383, 480, 490-91, 541, 621)
While plaintiffs placed in evidence various uses of the "Brooklyn Dodgers" mark, such as photo permissions in 1984 (PX 4, 5), a permission for use on United Airlines Radio Commercials (PX 6) and a permission to use the Brooklyn "B" in conjunction with a written history of the Brooklyn Dodgers baseball team (PX 7), such uses, granted, for minimal or no compensation, do not constitute trademark uses as is discussed more fully in the court's Conclusions of Law. Similarly plaintiffs attempt to prevent a third party from using the "Brooklyn Dodgers" mark in 1966 (PX 8) is not a trademark use; neither did these uses involve restaurant and tavern services.
With respect to restaurant and tavern services, the evidence established that while the "Brooklyn Dodgers" were playing baseball in Brooklyn, there existed, also in Brooklyn, a restaurant and tavern which used the name "Dodgers Cafe." (DX K) The logo of this establishment was the word "Dodgers," in script, with the figure of a swinging baseball batter. (DX L) The evidence shows that the "Dodgers Cafe" began operating with a State Liquor Authority license in 1942 and continued to operate until 1968, long after Los Angeles had left Brooklyn. Plaintiffs conceded that they took no step whatsoever while they were playing baseball in Brooklyn, or after they had relocated to Los Angeles, to cause the "Dodgers Cafe" to cease using the name as its servicemark for its restaurant.
E. Timing of the Litigation
In September, 1987 at approximately the same time that the trademark search for the name "The Brooklyn Dodger" was being conducted, defendant Boyle wrote a letter to Peter O'Malley, the President and part owner of Los Angeles, seeking O'Malley's best wishes "for the new business" which Boyle advised O'Malley he was about to open in Brooklyn. (Tr. 609-11)
In July 1988, plaintiff Los Angeles discovered defendants' use of the Brooklyn Dodger logo when plaintiff received a copy of the menu of defendant SNOD bearing the allegedly infringing mark. (Tr. 310; PX 14) This menu was sent to Los Angeles by defendant Boyle. (Tr. 631-32, 643) Although finding the allegedly infringing mark to be "a serious concern" (Tr. 345-46), on July 20, 1988 Los Angeles sent the menu bearing the allegedly infringing mark to Properties for further action, asking Properties to investigate the potential infringement of Los Angeles' trademarks but asking Properties to consider, before taking any enforcement action, the potential for negative publicity to the Los Angeles Dodgers. (Tr. 115-16, 346; PX 55; see Tr. 114, 319) Los Angeles took this action pursuant to the agreement between the Major League Clubs and Properties. Neither plaintiff Los Angeles nor plaintiff Properties chose to do anything further about the alleged infringement until April 24, 1989. (Tr. 361; PX 15)
As defendants' success in their new venture grew, they sought to take additional legal steps to protect their mark. Accordingly, on August 9, 1988 the composite design mark at issue, containing the term "The Brooklyn Dodger" was registered as a servicemark with the Secretary of State of the State of New York, yet again giving notice of defendants' interest in the name. (Tr. 555-56, 643; DX V)
In approximately February 1989, notice of defendants' attempt to register their logo with the United States Patent and Trademark Office was first officially published. (Tr. 494)
On April 24, 1989, fully nine (9) months after receipt by plaintiff Los Angeles of the *1117 menu sent by Boyle, plaintiffs wrote to defendants and claimed for the first time that the defendants' conduct was allegedly infringing their trademark and demanding that they cease and desist from any acts of infringement. (Tr. 318, 383, 646; PX 15 at 1-2)
From April 1989 to March 1990, there were periodic conversations during which the parties attempted unsuccessfully to resolve the dispute. (Tr. 319) When those efforts failed, plaintiffs filed their complaint in March 1990.
In June 1991, while this litigation was pending, counsel for plaintiffs learned during discovery that defendants had formed 9506 to open yet another establishment calling itself "The Brooklyn Dodger Sports Bar and Restaurant" in a new neighborhood in Brooklyn. Within days of that discovery, counsel for plaintiffs delivered to counsel for defendants a letter demanding that defendant cease and desist. (PX 15 at 3; Tr. 383) Defendants nevertheless chose to open another establishment in the Canarsie section of Brooklyn. (Tr. 704-06)
In July 1991 plaintiffs field their amended complaint. In March 1992 Judge Wood granted plaintiffs' motion for preliminary injunction concerning the Canarsie establishment but denied plaintiffs application for summary judgment. This court concluded trial of this matter in May 1992.
III. CONCLUSIONS OF LAW
A. Jurisdiction
This court has jurisdiction over the subject matter of each of the plaintiffs' causes action pursuant to 28 U.S.C. §§ 1331, 1338 and 15 U.S.C. § 1121 and principles of pendant jurisdiction, and consequently also has jurisdiction over the parties and over defendants' pleaded defenses and counterclaims.
B. Plaintiffs' Federal and Common Law Causes of Action
In order to obtain relief for common law trademark infringement or violations of the Federal Trademark Act ("the Lanham Act") for trademark infringement,[5] or for false representation of goods, or false designation of origin, and wrongful appropriation of plaintiffs' trademarks,[6] plaintiffs were required to prove by a fair preponderance of the credible evidence either actual confusion or a likelihood of confusion.[7]*1118 W.W.W. Pharmaceutical Co. v. Gillette Co., 984 F.2d 567, 571 (2d Cir.1993). In order to secure injunctive relief or other equitable relief, plaintiffs were required to prove a likelihood of confusion. Had plaintiffs sought to secure damages, they would have been required to prove actual confusion. See W.W.W. Pharmaceutical Co., Inc. v. Gillette Co., 808 F.Supp. 1013, 1020-21 (S.D.N.Y. 1992), aff'd, 984 F.2d 567 (2d Cir.1993). Thus, as to the likelihood of confusion, Los Angeles and Properties must show that "an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source" of the services provided by the defendants because of their use of the words "The Brooklyn Dodger" in conjunction with their restaurants in Brooklyn. W.W.W. Pharmaceutical, 984 F.2d at 571 (quoting Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978) (per curiam), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979) quoted in McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1130 (2d Cir.1979)).
This court finds and concludes that plaintiffs have failed to prove either actual confusion or likelihood of confusion stemming from defendants' trademark "The Brooklyn Dodger" even though it is similar to the "Brooklyn Dodgers" trademark that plaintiffs held as a sports club in Brooklyn.
In determining whether a plaintiff has proven likelihood of confusion, the courts of this Circuit follow and apply to the evidence the factors set forth in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.1961), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). "The [Polaroid] factors are designed to help grapple with the `vexing' problem of resolving the likelihood of confusion issue." W.W.W. Pharmaceutical, 984 F.2d at 572 (quoting Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 872 (2d Cir.1986) (citation omitted)). These factors are:
a) strength of plaintiff's trademark,
b) similarity between the trademark used by the parties,
c) proximity of the products,
d) the likelihood that plaintiffs will "bridge the gap,"
e) actual confusion,
f) good faith or intent of the defendant,
g) quality of defendants' services,
h) sophistication of purchasers.
This court finds only factors a) and b) in favor of plaintiffs. However, "[t]his list of factors does not exhaust the possibilities the court may have to take still other variables into account. American Law Institute, Restatement of Torts §§ 729, 730, 731." W.W.W. Pharmaceutical, 984 F.2d at 572 (quoting Polaroid Corp., 287 F.2d at 495).
1. Strength of the Mark
The strength of the mark is determined by "the distinctiveness of the mark, or more precisely, its tendency to identify the goods sold under the mark as emanating from a particular, although possibly anonymous source." W.W.W. Pharmaceutical, 984 F.2d at 572 (quoting McGregor-Doniger, 599 F.2d at 1131). A mark's strength, which turns on its "`origin-indicating' quality in the eyes of the purchasing public," W.W.W. Pharmaceutical, 984 F.2d at 572 (quoting McGregor-Doniger, 599 F.2d at 1131), is determined by two factors: "(1) the degree to which it is inherently distinctive; and (2) the degree to which it is distinctive in the marketplace." W.W.W. Pharmaceutical, 984 F.2d at 572 (quoting McGregor-Doniger, 599 F.2d at 1131-33).
Courts have used four categories in measuring the distinctiveness of a mark: generic, descriptive, suggestive, and arbitrary or fanciful. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976). "A generic mark is generally a common description of goods and is ineligible for trademark protection. A descriptive mark describes a product's features, qualities or ingredients in ordinary language, and may be protected only if secondary meaning is established. A *1119 suggestive mark employs terms which do not describe but merely suggest the features of the product, requiring the purchaser to use `imagination, thought and perception to reach a conclusion as to the nature of the goods....' Fanciful or arbitrary marks are eligible for protection without proof of secondary meaning and `with ease of establishing infringement.'" W.W.W. Pharmaceutical, 984 F.2d at 572 (citations omitted).
In assessing the strength of a mark outside its field, "coined" marks, such as "Xerox" or "Kodak," are considered the strongest marks and are accorded the highest degree of trademark protection. See Landers, Frary and Clark v. Universal Cooler Corp., 85 F.2d 46, 48 (2d Cir.1936). Marks incorporating words of common English usage are not accorded the same degree of protection as "coined" terms. The Court of Appeals for the First Circuit has explained the basis for this generally-accepted legal maxim:
We do not think a trader can pluck a word with favorable connotations [Esquire] for his goods or services out of the general vocabulary and appropriate it to his exclusive use no matter how much effort and money he may expend in the attempt.
Esquire Inc. v. Esquire Slipper Manufacturing Co., 243 F.2d 540, 543 (1st Cir.1957)
Unlike the case with "coined" or arbitrary words, the courts have consistently held the common English words, even if used arbitrarily in application to a user's services, are of weak trademark significance outside their field of operations. See, e.g., Sun Banks of Florida v. Sun Federal Savings and Loan, 651 F.2d 311, 316 (5th Cir.1981) ("sun" of weak trademark significance).
Even if there was a greater proximity of the parties' service lines, the name "Dodgers" would still not receive the protection plaintiffs here seek. The courts have demonstrated a reluctance to grant a user or holder of a mark which consists of a word of common English usage, even a word less commonly used than "dodgers," a monopoly on that term outside its field. See e.g., Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1027 (2d Cir. 1989) (court declined to find "Lexis" a strong mark outside its field due to its common use in the English language).
While the "Brooklyn Dodgers" mark, used by Los Angeles before it left Brooklyn, is not arbitrary or fanciful, its strength as the name of a nationally known sports team was more than just generic or descriptive. With respect to the precise issue presented here the strength of the trademarks of a sports franchise the Fifth Circuit Court of Appeals has noted: "Nearly everyone is familiar with the artistic symbols which designate the individual teams in various professional sports." Boston Professional Hockey Ass'n v. Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004, 1008 (5th cir.), cert. denied, 423 U.S. 868, 96 S.Ct. 132, 46 L.Ed.2d 98 (1975). See National Football League Properties, Inc. v. New Jersey Giants, Inc., 637 F.Supp. 507, 517 (D.N.J.1986) ("the NFL Marks ... are extremely strong, ... and, accordingly, are entitled to a wide range of protection").
Los Angeles' mark was suggestive, the strength of the mark and the suggestiveness of the mark derived from the use of two common English words together. See W.W.W. Pharmaceutical, 984 F.2d at 572. The words "Brooklyn" and "Dodgers" together "make up a composite more distinctive than the sum of its parts." W.W.W. Pharmaceutical, 984 F.2d at 572. As opposed to considering the word "Brooklyn" or the word "Dodgers" alone, the imaginative mind could consider "Brooklyn Dodgers" as connotative of a sports club in Brooklyn, as is required of suggestive marks.
The public undoubtedly identified the mark "Brooklyn Dodgers" with the Brooklyn-based baseball team. To that extent, the mark was strong and deserving protection.
2. Similarity Between the Trademarks Used by the Parties
In determining the similarity of the mark, the test is "whether the similarity of the marks is likely to provoke confusion among potential customers." W.W.W. Pharmaceutical, 984 F.2d at 573; McGregor-Doniger, 599 F.2d at 1133. For this factor, the court looks to "the general impression created by the marks, keeping in mind all factors *1120 which the buying public will likely perceive and remember." W.W.W. Pharmaceutical, 984 F.2d at 573; McGregor-Doniger, 599 F.2d at 1133.
The defendants' "The Brooklyn Dodger" mark is clearly similar to the "Brooklyn Dodgers" mark used by Los Angeles as a Brooklyn sports club. The blue color of the mark is similar. The script is similar. That defendants' mark is singular as opposed to Los Angeles' plural mark is insignificant. E.g., Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47-48 (2d Cir.1978) (per curiam), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979) ("it is difficult to conceive of any reason to distinguish" between trademarks that, among other things, "are merely the singular and plural forms of the same word").
The periodic use by defendants of a cartoon figure in their logo also does not make the logo dissimilar from Los Angeles' "Brooklyn Dodgers" trademark. The addition of a cartoon figure to a mark is insufficient to prevent a likelihood of consumer confusion. See also James Burrough Ltd. v. Sign of the Beefeater, Inc., 540 F.2d 266, 275 (7th Cir.1976) (mark comprising phrase "Sign of the Beefeater" in combination with a cartoon depiction of a fat hungry man infringed plaintiff's "Beefeater" mark); Coherent, Inc. v. Coherent Tech., Inc., 736 F.Supp. 1055, 1064 (D.Colo.1990) (inclusion of a bug character does not differentiate parties' marks), aff'd, 935 F.2d 1122 (10th Cir.1991). Even if the presence of a cartoon character could make two trademarks dissimilar, it does not have that effect here, where the cartoon is omitted from significant uses of defendants' logo, and where defendants concede that their cartoon figure is at least in part an allusion to "the famous `Brooklyn Bum'" character associated with the "Brooklyn Dodgers." In fact, defendants' witness concedes that the entire mark was designed to allude to the mark used by Los Angeles when it was a Brooklyn-based baseball club. (Tr. 486-89, 569, 688)
Defendants' mark is similar to plaintiffs' "Brooklyn Dodgers" mark used by Los Angeles as a Brooklyn sports club.
3. Proximity of the Products
The third prong of the Polaroid test considers whether the products compete with each other. Lang v. Retirement Living Pub. Co., 949 F.2d 576, 582 (2d Cir.1991). "To the extent goods (or trade names) serve the same purpose, fall within the same general class, or are used together, the use of similar designations is more likely to cause confusion." Lang, 949 F.2d at 582. Thus, in determining proximity of the products, the court considers content, geographic distribution, market position, and audience appeal. W.W.W. Pharmaceutical, 984 F.2d at 573 (citing C.L.A.S.S. Promotions, Inc. v. D.S. Magazines, Inc., 753 F.2d 14, 18 (2d Cir. 1985)).
Competitive proximity "addresses whether, due to the commercial proximity of the competitive products, consumers may be confused as to their source." Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d 70, 77 (2d Cir. 1988). Confusion is more likely when the parties compete in the same market.
In determining competitive proximity a court will compare such factors as advertising orientation, function of the services, geographical and cultural audiences, style, price, marketing channels and competitor. See, e.g., McGregor-Doniger, 599 F.2d at 1134 (upholding district court finding of significant difference in products); C.L.A.S.S. Promotions, 753 F.2d at 18 (no proximity though both magazines directed to Black audiences due to difference in appearance, size, content, geographical distribution and audience appeal); Transamerica Corp. v. Trans-America Abstract Service, 698 F.Supp. 1067, 1074 (E.D.N.Y 1988) (no proximity though both sell title insurance because different geographical markets targeted). The evidence presented at trial indicated the diversity between the parties' goods and services, their advertising orientation, the function of their services, their geographical markets and their marketing channels and competitors.
Plaintiffs' primary services involve the giving of baseball exhibitions, principally in Los Angeles, sometimes in New York State, never in Brooklyn. Defendants, on the other *1121 hand, provide restaurant and tavern services exclusively in Brooklyn. These services share no common functions, are not competitive, share no salient attributes and are not inherently comparable. Also there is no commonality with respect to the parties' marketing functions, advertising orientation, geographical audiences, etc.[8] In sum, the court finds that the parties do not use the same name and are not in the same business; they cater to different markets 3,000 miles apart. The law, as applied to the facts proven at trial, makes clear that plaintiffs have failed to establish a likelihood of confusion based on this factor.
4. Likelihood that Plaintiffs will "Bridge the Gap" Between the Two Markets
The "bridging the gap" factor is intended to protect the senior user's ability to bridge the gap; that is, the senior user's "interest in being able to enter a related field at some future time...." W.W.W. Pharmaceutical, 984 F.2d at 574 (citing Scarves by Vera, Inc. v. Todo Imports Ltd., 544 F.2d 1167, 1172 (2d Cir.1976)). While some allowance is made for the senior user to preserve future expansion possibilities (see Centaur Communications Ltd. v. A/S/M Communications, Inc., 830 F.2d 1217, 1227 (2d Cir.1987); Lever Bros. v. American Bakeries Co., 693 F.2d 251, 258 (2d Cir.1982), there must be some credible evidence of the plaintiff's present intent to enter defendants' field.
Plaintiff Los Angeles claims to have existed for more than 100 years. Major League Baseball has existed for over 100 years. "Sports bars" have existed for almost as long. Over all this period Major League Baseball has never operated a sports bar and restaurant nor indicated a desire to do so. The selling of food stuffs such as hot dogs (Dodger Dogs) and the licensing of a single third party in New Jersey to hang photographs is not equivalent to use of a name for a restaurant in Brooklyn or sufficient to indicate a likelihood of bridging the gap. While the court is aware of the evidence presented at trial that at least one restaurant has used the name of a major league baseball team ("The San Diego Padres") no such evidence was presented with respect to plaintiff Los Angeles. Since plaintiffs have not "bridged the gap" in 100 years, there has been no proof that they will "bridge the gap" in the future.
5. Actual Confusion
"The Lanham Act seeks to prevent consumer confusion that enables a seller to pass off [the seller's] goods as the goods of another." W.W.W. Pharmaceutical, 984 F.2d at 574 (citation omitted).
In order to recover damages under the Lanham Act, "the Second Circuit requires proof of real and precise actual confusion." W.W.W. Pharmaceutical v. Gillette Co., 808 F.Supp. 1013, 1020 (S.D.N.Y.1992), aff'd, 984 F.2d 567 (2d Cir.1993) (citing Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162 (2d Cir.1991); Getty Petroleum Corp. v. Island Transportation Corp., 878 F.2d 650 (2d Cir.1989); PPX Enterprises, Inc. v. Audiofidelity Enterprises, Inc., 818 F.2d 266 (2d Cir.1987); Shen Mfg. Co. v. Suncrest Mills, Inc., 673 F.Supp. 1199 (S.D.N.Y.1987)).
As discussed above,[9] plaintiffs have dropped their claims for monetary damages and are now seeking only injunctive relief which requires proof of a likelihood of confusion, rather than actual confusion. See W.W.W. Pharmaceutical v. Gillette Co., 808 F.Supp. 1013, 1021 (S.D.N.Y.1992), aff'd, 984 F.2d 567 (2d Cir.1993). While actual confusion is not required for injunctive relief, W.W.W. Pharmaceutical v. Gillette Co., 808 F.Supp. 1013, 1024 (S.D.N.Y.1992), aff'd, 984 F.2d 567 (2d Cir.1993), it is one of the Polaroid factors used in this Circuit in determining likelihood of confusion.
While the plaintiff in an infringement action need not prove actual confusion, it is proper for the court to infer from the *1122 absence of actual confusion, particularly after defendants' operation for a lengthy period of time, that there is no likelihood of confusion. See also Universal City Studios v. T-Shirt Gallery, Ltd., 634 F.Supp. 1468, 1478 (S.D.N.Y.1986); W.W.W. Pharmaceutical v. Gillette Co., 808 F.Supp. 1013, 1024 (S.D.N.Y. 1992), aff'd 984 F.2d 567 (2d Cir.1993) ("absence of evidence of actual confusion over a period of several years is `a strong indicator that the likelihood of confusion is minimal'") (citing Plus Products v. Plus Discount Foods, Inc., 722 F.2d 999, 1006 (2d Cir. 1983)).
Plaintiffs presented evidence that certain of defendant SNOD's cancelled checks contained the legend "The Brooklyn Dodgers," alleging that some of defendants' business associates may have confused defendants' singular name with the plural name that plaintiffs held while in Brooklyn. The court concludes that this evidence constitutes typographical errors. Moreover, cancelled checks are no proof of actual consumer confusion of the restaurant with the baseball organization.
Plaintiffs also submitted survey evidence which, if credible and not fatally flawed by its structure or content, might have been probative on this factor. See Universal City Studios, 634 F.Supp. at 1478. This evidence consists of two (2) consumer surveys. The first survey claims that "46% of relevant consumers believe that the [`Brooklyn Dodger'] restaurant had to obtain authorization from the Los Angeles Dodgers baseball team, or from Major League Baseball, to use this name." (PX 24) In response, defendants retained an expert, Dr. Michael Rappeport, who after his review of plaintiffs' survey, rendered a critique of plaintiffs' first survey which concluded that, for a number of reasons the survey was fatally flawed. Dr. Rappeport identified four substantive or "content" questions that were asked in plaintiffs' survey in addition to a number of screening and/or background questions which were used to define the sample and/or to separate the respondents into subgroups for analysis purposes. (DX BB at 1) The first two questionsquestions 4a and 4b concerned, according to Dr. Rappeport, the issue of association.[10] The court concludes that Dr. Rappeport's criticism of the significance of the associational questions is valid. In other words, the issue here is not whether defendants' name brings to mind any other name; defendants' admit that part of their goal is to promote nostalgia or association with part of Brooklyn's cultural history. Rather, the issue here is one of actual confusion. Plaintiffs' survey questions regarding association are irrelevant to the issue of actual confusion.
The second two questionsquestions 5a and 5b concerned the issue of sponsorship. (See DX BB at 1-2) The second pair of questions read as follows:
5a Do you believe that the restaurant had to get authorization, that is, permission to use the name, "The Brooklyn Dodger?"
5b From whom did they have to get authorization, that is permission?
According to Dr. Rappeport, the second two questions were intended to determine:
1) That applicable consumers will be confused as to the actual ownership of The Brooklyn Dodger restaurant, i.e. that they will think the restaurant is owned by the owners of the Los Angeles Dodgers baseball team.
2) That applicable consumers will believe that The Brooklyn Dodger restaurant is sponsored/authorized by the people who now own the Los Angeles Dodgers baseball team.
(DX BB at 1-2) Dr. Rappeport found, however, that questions 5a and 5b failed to effectively address the intended issues of confusion regarding actual ownership and authorization and that the questions were "fatally flawed" such that the "questions (and thus *1123 the [plaintiffs'] survey as a whole) do not yield any meaningful evidence with regard to the remaining issue of likelihood of sponsorship or authorization." (DX BB at 2) (emphasis in original) Dr. Rappeport explained that questions 5a and 5b were "inherently highly likely to lead respondents in a direction favorable to the plaintiffs." (DX BB at 2)[11]
The court concludes that these questions were leading, causing the survey to be fatally flawed.[12] Moreover, the court concludes that these questions were indistinguishably similar to the questions in WUV's International v. Love's Enterprises, 208 USPQ (BNA) 736 (D.Colo.1980) which were also held to be invalid. In WUV's, the court concluded that the following question was "open-ended" and "valid":
4. What company or person do you believe owns or operates this restaurant?
However, the court concluded that a subsequent question,
6. Do you believe that this restaurant is connected with or related to any other restaurant?
was "leading and unnecessarily suggestive." 208 USPQ (BNA) 736. Both plaintiffs' questions, 5a and 5b, are leading and suggestive in the same fashion as questions 6 in WUV's.
In addition to the leading nature of questions 5a and 5b, Dr. Rappeport criticized what he described at trial as the "central problem" in plaintiffs' survey which was that the survey provided for no controls. Dr. Rappeport provided in juxtaposition some examples of control questions that plaintiffs might have used.[13] (DX BB at 4) Dr. Rappeport concluded:
Because [plaintiffs' survey] failed to use any controls, they have no measure of what percentage of respondents are reacting to the particular stimuli and what [percentage] would be confused no matter what they were asked. Thus the interpretation of their data is impossible, and any conclusions drawn from their data must be seen as meaningless.
(DX BB at 4)
As to the entire survey Dr. Rappeport concluded, "in my opinion the results of this survey should be considered to have no value in demonstrating that the applicable public believes that `The Brooklyn Dodger' restaurant is authorized by or got permission from Major League Baseball Properties, Inc. or the Los Angeles Dodgers, Inc." (DX BB at 5)
In the face of defendants' criticism, plaintiffs commissioned a "Supplemental Consumer Survey" in an attempt to address the criticisms of Dr. Rappeport, defendants' expert. (PX 26) Dr. Rappeport reviewed the "Supplemental Consumer Survey" and testified at trial that while plaintiffs' "Supplemental Consumer Survey" addressed a number of his criticisms, it "never touched, never dealt at all with the fourth and by far the most important of the critiques," concerning lack of controls.[14] (Tr. 428)
*1124 The court concludes that plaintiffs' surveys are flawed, that both surveys contain a complete lack of controls rendering the data meaningless and having no evidentiary value. Therefore, the court concludes that there is no proof of actual confusion.
6. Good Faith or Intent of the Defendant
This factor looks to "whether the defendant adopted its mark with the intention of capitalizing on plaintiff's reputation and goodwill and any confusion between [defendant's] and the senior user's product." W.W.W. Pharmaceutical, 984 F.2d at 575 (quoting Lang, 949 F.2d at 583 (citation omitted)). Even if a junior user has notice of a senior mark, this is not an indication of bad faith. Edison Bros. Store, Inc. v. Cosmair, Inc., 651 F.Supp. 1547, 1560 (S.D.N.Y.1987). Indeed, even if a mark is registered, the presumption of an exclusive right to use it extends only as far as the goods or services noted in the registration certificate. Mushroom Makers, 580 F.2d at 48.
The proof at trial clearly establishes that at every turn defendants acted in good faith in electing, adopting, and using their mark. They made no effort to use their mark in such a way as to trade upon the reputation of plaintiff Los Angeles, but rather to elicit memories of the "Brooklyn Dodgers," a historical concept. Indeed, the trial testimony establishes that, given the notoriety of Los Angeles's departure from Brooklyn and the ill will that flows from that event even to this day (PX 31), trading upon Los Angeles' "good will" in Brooklyn would have been fatal to defendants because many Brooklynites despise the "Los Angeles Dodgers." (Tr. 529, 608-09)
The testimony given in this matter establishes that it was defendants' intention that their proposed sports bar would have a strong Brooklyn identity. They first considered the name "Ebbets Field" and commissioned a trademark search for that name. While the search uncovered no current uses of that name, defendants were informed that a small bar in Hicksville, New York was using it. Ironically, wishing to avoid any possible legal entanglements, defendants then did a trademark search of "The Brooklyn Dodger" name. Finding no registration for "Brooklyn Dodgers," had aware that the "Brooklyn Dodgers" had not existed for more than 30 years, Boyle wrote to Peter O'Malley, the owner and president of Los Angeles in the latter part of 1987 and told him that the Boyle restaurant would be called "The Brooklyn Dodger."
On April 28, 1988 defendants filed an application to register "The Brooklyn Dodger" as part of the previously described composite design and mark with the U.S. Patent and Trademark Office and also registered it as a servicemark with the New York State Secretary of State on August 9, 1988. The evidence leaves no doubt but that defendants only took these steps after assuring themselves that no one else was using this mark and after writing to the owner of the Los Angeles Dodgers and advising him of their intent to use "The Brooklyn Dodger" as the name of their restaurant. Such conduct weighs heavily on a court seeking to do equity.[15]
7. Quality of Defendants' Services
Plaintiffs merely assert that defendants' products are inferior. This court finds no evidence that defendants' products or services are inferior. Moreover, the trial evidence indicates that the parties' respective products *1125 and services simply do not compete in any market.
8. Sophistication of the Likely Purchasers
"Likelihood of confusion must be assessed by examining the level of sophistication of the relevant purchasers." W.W.W. Pharmaceutical, 984 F.2d at 575; McGregor-Doniger, 599 F.2d at 1137.
Defendants' patrons are drawn from the general public and to some extent cannot be said to have unique qualities or sophistication. On the other hand, defendants established at trial that a significant number of the customers who patronize defendants' restaurants in Brooklyn are sophisticated concerning the issue before this courtthe difference between plaintiffs' goods and services and defendants' services and the likelihood of confusion. Defendants testified that many of the patrons who frequent "The Brooklyn Dodger" are well aware of Los Angeles' now infamous abandonment of the Borough of Brooklyn andto the third generation since thenremain bitter about it. (Tr. 563, 608-09) In Brooklyn, the "Los Angeles Dodgers" and the "Brooklyn Dodgers" are seen as two separate entities which have been wholly unrelated for more than 30 years. (Tr. 547; 648 et seq.) It is unlikely that Los Angeles' now infamous departure from Brooklyn and its attendant negative notoriety could be ignored by actual or would-be patrons of defendants' restaurants. Given the entirety of facts, therefore, there is virtually no likelihood of confusion by these sophisticated consumers that plaintiffs have somehow authorized defendants to do business under "The Brooklyn Dodger" namea name plaintiffs abandoned when they became the "Los Angeles Dodgers."
9. The Centaur Factors
In addition to the analysis under Polaroid which is required in this Circuit, the Court of Appeals has added three more factors which, when applied, similarly assist the factfinder in determining the core question in any trademark litigationwhether defendants' use of the plaintiffs' mark is likely to cause an appreciable number of reasonably prudent purchasers to believe that services offered by the defendants are from the same source as the goods and services that they know are sold under the plaintiffs' trademark. See Centaur Communication v. A/S/M Communications, 830 F.2d 1217, 1228 n. 2 (2d Cir.1987). These so-called Centaur factors are: a) the nature of the senior user's priority; b) its delay in asserting its claim and c) the balance of harm and benefit that would result from granting an injunction against the junior user's use of the mark. Centaur Communication, 830 F.2d at 1228 n. 2.
The nature of the senior user's priority is particularly germane in this litigation. The evidence at trial established that in October 1958 plaintiffs' goodwill nexus to the Borough of Brooklyn was irretrievably shattered. Following Los Angeles' departure from Brooklyn, no commercial use was made by plaintiffs of any "Brooklyn Dodgers" mark until 1981. However it is likewise clear that in 1981 plaintiffs did resume commercial use of the "Brooklyn Dodgers" mark. While plaintiffs' resumed use was dramatically reduced relative to its use as the name of a major league baseball team, geared primarily toward novelty items and token remembrances, this resumed use occurred prior to defendants' first use of the mark for their restaurants in Brooklyn in 1988. Therefore, plaintiffs have priority to the extent of their use as of 1981.
The second Centaur factor, plaintiffs' failure to move in a timely fashion. Plaintiffs claim that they did not learn of defendants' use of "The Brooklyn Dodger" mark until July 1988. The parties agree the plaintiffs' first "cease and desist" request was not made until April 24, 1989 when plaintiffs' counsel sent a letter to Kevin Boyle. (PX 15) Given that defendants' took significant steps in establishing their Brooklyn restaurant business in that interim, plaintiffs' failure to act was somewhat prejudicial.
Finally, on the issue of balancing the harm and benefit which would result from granting an injunction. The balancing of these equities favors defendants. The equities show that prior to its move from Brooklyn, Los Angeles held rights in a strong mark which is very similar to defendants' mark and that *1126 plaintiffs still have priority in use of the mark. However, what the equities also show is a small neighborhood restaurant which has acted in good faith and which has been dogged by this massive litigation brought by plaintiffs who, by their own admission, generated retail sales in excess of $1.5 billion in 1990 and, for reasons never made clear at trial, chose not to file an application to register any "Brooklyn Dodgers" trademark until one year after defendants' application despite plaintiffs' alleged ownership of the mark for almost a century.
This court might have thought that in the execution of its crucial purpose of protecting and preserving the sanctity of major league baseball teams' mark, plaintiff Properties might have found a way, between 1958 and 1989, of taking the simple and expedient step of filing an application for trademark registration of the "Brooklyn Dodgers" name as it plainly did for each of the twenty-six (26) other names in its collection. Having moved away from Brooklyn in 1957, having failed to put the "Brooklyn Dodger" mark to a trademark use of at least two decades and having failed to file an application to register the "Brooklyn Dodger" mark until 1989 a step defendants took in April 1988 for its "The Brooklyn Dodger" mark the court concludes that the equities lie in defendants' favor. If plaintiffs were still located in Brooklyn and if they had continued to use the mark through the present, then the equities would be different.
When the trial evidence is weighed in the balance this court concludes that, under the Polaroid factors, as expanded by the Centaur factors, plaintiffs have failed to prove, by a fair preponderance of the credible evidence, actual confusion or a likelihood of confusion between plaintiffs' "Brooklyn Dodgers" mark as used by them in Brooklyn and defendants' "The Brooklyn Dodger" mark.
C. Defendants' Affirmative Defenses
1. Abandonment
Under the Lanham Act a federally registered trademark is considered abandoned if its "use has been discontinued with intent not to resume." Cerveceria Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021, 1023 (Fed.Cir.1989) (quoting Lanham Act, 15 U.S.C. § 1127 (1988)).
Abandonment is defined in the Lanham Act: "A mark shall be deemed `abandoned' (a) When its use has been discontinued with intent not to resume. Intent not to resume may be inferred from circumstances." 15 U.S.C. § 1127 (1988).
Rights in a trademark are acquired and maintained through use. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 50, 63 L.Ed. 141 (1918) ("The law of trademarks is but a part of the broader law of unfair competition; the right to a particular mark grows out of its use, not its mere adoption"). See also D.V.L. Mastrullo, Trademark Parody Litigation and the Lanham Act: Fitting a Square Peg in a Round Hole, 54 U.CIN.L.REV. 1311, 1324 (1986) ("Rights to a trademark are acquired only through deliberate and continuous use of the trademark, and thus rights to a trademark can be lost where the mark is abandoned or so widely used that it no longer functions as a distinctive representation of the single source of the product"). "A federal registration of a trademark may be cancelled if the mark is abandoned." Cerveceria India, 892 F.2d at 1023. See also Societe de Developments et D'Innovations des Marches Agricoles et Alimentaires-Sodima-Union de Cooperatives Agricoles ("Sodima") v. International Yogurt Co., Inc., 662 F.Supp. 839, 843 (D.Or.1987) (Lanham Act permits cancellation at any time where registered mark has been abandoned). Therefore abandonment is an affirmative defense to trademark infringement. See Roulo v. Russ Berrie & Co., 886 F.2d 931, 935 (7th Cir.1989), cert. denied, 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990) (abandonment is affirmative defense). The burden of proving abandonment falls upon the party seeking cancellation of a registered mark because a certificate of registration is "`prima facie evidence of the validity of the registration' and continued use." Cerveceria India, 892 F.2d at 1023 (quoting J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960, 962-63 (CCPA 1965)); Exxon Corp. v. Humble Exploration Co., 695 F.2d 96, 99 *1127 (5th Cir.), reh'g denied, 701 F.2d 173 (5th Cir.1983) (citation omitted). The party seeking cancellation must establish abandonment by a preponderance of the evidence. See Cerveceria India, 892 F.2d at 1023-24.
The Lanham Act provides that "[n]onuse for two consecutive years shall be prima facie abandonment." 15 U.S.C. § 1127. Stetson v. Howard D. Wolf & Assoc., 955 F.2d 847, 850 (2d Cir.1992) (prima facie abandonment exists where there has been nonuse for two consecutive years); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1043 (2d Cir.1980) (same). See also Cerveceria India, 892 F.2d at 1023 ("nonuse for two consecutive years constitutes `prima facie abandonment'") (quoting Lanham Act, 15 U.S.C. § 1127); Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F.2d 675, 679 (CCPA 1971) (nonuse for over two years constitutes prima facie abandonment). Prima facie abandonment establishes a rebuttable presumption of abandonment. Lehman, 625 F.2d at 1044. See also Star-Kist Foods, Inc. v. P.J. Rhodes & Co., 769 F.2d 1393, 1396 (9th Cir.1985) (prima facie abandonment creates presumption that may be rebutted); Roulo, 886 F.2d at 935 (prima facie abandonment shifts burden of production to trademark owner to explain nonuse or establish existence of intent to resume). See, e.g., Lipton Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 1031 (CCPA 1982) ("board properly required appellant to put forth at least some evidence to explain its nonuse which, in conjunction with the presumption of validity [due to trademark registration], might have defeated appellee's case") (citation omitted).[16]
The evidence presented at trial established that between 1958 and 1981 plaintiffs made no commercial trademark use[17] whatsoever of any "Brooklyn Dodgers" mark.[18] Minor changes in a trademark that do not affect the overall commercial impression of the mark do not constitute abandonment. See Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 955 (7th Cir.), reh'g en banc denied (quoting 1 J. Thomas McCarthy, Trademarks and Unfair Competition, § 17:10, at 787 (2d ed.1984)). However, Los Angeles' change, in this case, from "Brooklyn Dodgers" to "Los Angeles Dodgers" was not minor; it involved an essential element affecting the public's perception of the mark and the team.[19]Compare Quaker Oats, 978 F.2d at 955 (change from THIRST-AID, FIRST AID FOR YOUR THIRST to THIRST-AID not abandonment) and Puritan Sportswear Corp. v. Shure, 307 F.Supp. 377 (W.D.Pa.1969) (change from PURITAN SPORTSWEAR, THE CHOICE OF ALL AMERICANS to PURITAN not abandonment).
Moreover, plaintiffs in this case did not simply adopt a second name, "Los Angeles Dodgers," in addition to their first name, *1128 "Brooklyn Dodgers," as did plaintiff in Guiding Eyes For the Blind, Inc. v. Guide Dog Foundation For the Blind, Inc., 384 F.2d 1016 (CCPA 1967). In Guiding Eyes, appellee adopted a second trademark, "Second Sight," for use in addition to its original trademark "Guiding Eyes." The court held that because appellee had continued to use the original mark after and along with its use of the second mark, there was no abandonment of the original mark. In this case, however, plaintiffs did not use the "Los Angeles Dodgers" mark along with the "Brooklyn Dodgers" mark; plaintiffs used the "Los Angeles Dodgers" mark instead of the "Brooklyn Dodgers" mark as the name of the sports team.
Plaintiffs argue that their "Dodgers" mark without a geographical referencethat is, "Dodgers" aloneis a protected use infringed by defendants actions. However, in this context, "Brooklyn" is more than a geographic designation or appendage to the word "Dodgers." The "Brooklyn Dodgers" was a non-transportable cultural institution separate from the "Los Angeles Dodgers" or the "Dodgers" who play in Los Angeles. It is not simply the "Dodgers," (and certainly not the "Los Angeles Dodgers"), that defendants seek to invoke in their restaurant; rather defendants specifically seek to recall the nostalgia of the cultural institution that was the "Brooklyn Dodgers." It was the "Brooklyn Dodgers" name that had acquired secondary meaning in New York in the early part of this century, prior to 1958. It was that cultural institution that Los Angeles abandoned.
Nevertheless, assuming arguendo, that the relevant mark is "Dodgers" which plaintiffs claim to have used continuously for the past fifty years for sports and entertainment purposes, the parties uses are sufficiently distinct to permit defendants' use. Plaintiffs did not register the "Dodgers" mark (without "Brooklyn") for commercial use until 1967, almost a decade after their abandonment. (PX 2) Plaintiffs, even after using the "Dodger" mark for fifty years, have never used the name for a nostalgic sports restaurant as defendants have. Defendants in operating their restaurant did not register the "Dodger" mark (without "Brooklyn") and have not used the "Dodger" mark in any form outside of New York. However, this court concludes that "Brooklyn Dodgers" rather than "Dodgers" is the trademark that acquired secondary meaning as a cultural institution in New York, and it is "Brooklyn Dodgers" rather than "Dodgers" that is at issue in this litigation.
A determination of the issue of abandonment requires an analysis of the trademark holder's occupation or business to determine what constitutes use of the mark. Stetson, 955 F.2d at 851. In this case, in order to maintain use of the mark, Los Angeles would have had to continue to use "Brooklyn Dodgers" as the name of its baseball team. Only in this way would the public continue to identify the name with the team. Defiance Button Mach. Co. v. C & C Metal Products Corp., 759 F.2d 1053, 1059 (2d Cir.), cert. denied, 474 U.S. 844, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985) (if owner abandons mark through nonuse with intent not to resume, "others are no longer restrained from using it since it ceases to be associated in the public's mind with the owner's goods or services") (citing Manhattan Industries, Inc. v. Sweater Bee by Banff, Ltd., 627 F.2d 628, 630 (2d Cir.1980)).[20]See, e.g., Stetson, 955 F.2d *1129 at 851 (use must be sufficient to maintain public's identification of mark with proprietor).
Evidence was presented at trial that Los Angeles occasionally gave written permission, for little or no compensation, to use the "Brooklyn Dodgers" name. In 1959, Los Angeles made prominent commercial use of and reference to their Brooklyn heritage and trademarks in connection with the promotion of Roy Campanella Night, honoring the former Brooklyn Dodgers player and present employee. (Tr. 94-96, 266-67; PX 1 at 2) Los Angeles made prominent use of their trademarks incorporating the word Brooklyn at their annual oldtimers games. (PX 1 at 37, 40; Tr. 270) Oldtimers games are commercial baseball exhibitions at which former players are honored and perform so that older fans can recall the past and younger fans can learn about the history of the Club. (Tr. 267-68)
The case law is clear that such uses do not constitute trademark uses of the "Brooklyn Dodgers" name. Amended Section 45 of the Lanham Act defines "use in commerce" as "the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in the mark." 15 U.S.C. § 1127.[21] Neither "`challenging infringing uses' nor `sporadic licensing' for non-commercial activities constitutes use." Stetson, 955 F.2d at 851 (quoting Silverman v. CBS, Inc., 870 F.2d 40, 47 (2d Cir.), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989)); La Societe Anonyme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1271 (2d Cir.1974) (citing 3 Callmann, Unfair Competition, Trademarks & Monopolies § 76.2(d) (1969)) ("To prove bona fide usage, the proponent of the trademark must demonstrate that [its] use of the mark has been deliberate and continuous, not sporadic, casual or transitory").
Rather than using the "Brooklyn Dodgers" mark in the ordinary course of trade, a more accurate description of Los Angeles' use of the mark, at least between 1958 and 1981, was given by its General Counsel in a 1985 letter to someone seeking to use it on a novelty item:
Since the Dodgers moved to Los Angeles in 1958 the name `Brooklyn Dodgers' has been reserved strictly for use in conjunction with items of historical interest. (PX 9)
Under the law, such warehousing is not permitted. See Jean Patou, 495 F.2d at 1272 (citation omitted) ("where no present intent has been found to market the trademarked product, minimal sales have been held insufficient to establish trademark rights"). See also Exxon, 695 F.2d at 101 ("The Act does not allow the preservation of a mark solely to prevent its use by others"). Instead, trademarks must be used as trademarks to retain enforceable property rights in them. Stetson, 955 F.2d at 851 (quoting Silverman, 870 F.2d at 48) (use must be "sufficient to maintain `the public's identification of the mark to the proprietor'"). Rights in a trademark are lost when trademarks are "warehoused" as plaintiffs attempted to "warehouse" the "Brooklyn Dodgers" mark for more than two (2) decades. See Stetson, 955 F.2d at 851 ("trademark must be used or lost to another economic actor more willing to promote the mark in commerce"). Plaintiffs' failure to use the "Brooklyn Dodgers" trademark between 1958, when Los Angeles left Brooklyn, and 1981 constitutes abandonment of the trademark.[22]
*1130 In this Circuit the law of trademark abandonment is set forth in Silverman v. CBS, Inc., 870 F.2d 40 (2d Cir.1989). See also Stetson, 955 F.2d at 850-51 (district court should use Silverman criteria). In Silverman a dispute arose over the use of the characters from the "Amos & Andy" radio and television programs. Although CBS held the trademark and copyrights from the original airings, it had discontinued its broadcasts in 1966 due to criticism as to the programs' negative stereotyping of African-Americans. In 1981 Silverman wrote a script for a Broadway musical based on the "Amos & Andy" characters and sought a license from CBS to use them. When CBS refused, Silverman brought an action seeking, inter alia, a declaratory judgment that CBS no longer had any rights in these marks. Silverman argued that CBS' failure to broadcast the programs or to make commercial use of the characters led to an abandonment of the marks. CBS countered that its discontinuance of the program broadcasts was done for "worthy motives." In addition, CBS claimed, not unlike plaintiffs here, that it had licensed the program for non-commercial use, had challenged infringing uses of the name brought to its attention, and periodically considered whether to resume use of the programs. 870 F.2d at 47. The court in Silverman found no merit in CBS's claims and found all of its "Amos & Andy" property rights to have been abandoned.
This court concludes that the Silverman rationale applies here and that plaintiffs abandoned the "Brooklyn Dodgers" trademark. Plaintiffs plainly had not used the term "Brooklyn Dodgers" for trademark purposes for at least 23 years following their departure from Brooklyn. Their occasional licensing and using the name for historical retrospective and matters of historical interest did not constitute trademark uses of the mark but were non-commercial activities and certainly not more than sporadic. Defendants, therefore, have proven nonuse by plaintiffs sufficient for their claim of abandonment.
Abandonment under the Lanham Act, however, requires both nonuse and intent not to resume use. Stetson, 955 F.2d at 850 (citation omitted); Lehman, 625 F.2d at 1043 (abandonment requires nonuse and intent not to resume). See also Loctite Corp. v. National Starch and Chemical Corp., 516 F.Supp. 190, 218 (S.D.N.Y.1981) (citing Lehman, 625 F.2d at 1043) (same); Sodima, 662 F.Supp. at 843 (statute contains elements of intent and nonuse, and intent not to use may be "inferred from actual non-use which has lasted for two years").
Once prima facie abandonment has been proven, the trademark registrants in this case plaintiffsmust carry their burden of producing evidence that there was an intent to resume use of the trademark. Cerveceria India, 892 F.2d at 1025-26. See also Sodima, 662 F.Supp. at 844-45, 848-49; Schenley Industries, 441 F.2d at 679. While the trademark registrant has the burden of production as to intent to resume, the ultimate burden of persuasion remains with the party claiming abandonment. Quaker Oats, 978 F.2d at 956.
Rather than merely proving that it did not intend to abandon its trademark, the trademark registrant must demonstrate that it intended to use or resume use. See Exxon, 695 F.2d at 99, 102-103 ("Stopping at an `intent not to abandon' [rather than `intent to resume'] tolerates an owner's protecting a mark with neither commercial use nor plans to resume commercial use. Such a license is not permitted by the Lanham Act"); Roulo, 886 F.2d at 938 (discussing differences among circuits in requiring intent to resume versus intent not to abandon and holding that proper test is intent to resume); Ambrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1550 (11th Cir.1986) (inquiry is intent to resume rather than intent not to abandon). See also Sodima, 662 F.Supp. at 849 (same). Lack of intent to resume use may be inferred from the circumstances surrounding the nonuse of the mark. Vitaline Corp. v. General Mills, *1131 Inc., 891 F.2d 273, 275 (Fed.Cir.1989) ("Although abandonment requires both non-use and intent not to resume use of the mark, the element of intent can be established inferentially by the same facts that establish non-use"). See also Anvil Brand, Inc. v. Consolidated Foods Corp., 464 F.Supp. 474, 481 (S.D.N.Y.1978) (inference of intent not to resume use may be drawn from proof of non-use for two years). For Los Angeles to have had an "intent to resume" it must have had plans to resume commercial use of the mark within two years at the time that it left Brooklyn in 1958. See Exxon, 695 F.2d at 102; Imperial Tobacco, Ltd. v. Philip Morris, Inc., 899 F.2d 1575, 1580 (Fed.Cir.1990) ("where there is use, followed by a period of nonuse, the question is whether the registrant `discontinued' use with an `intent not to resume'" (no citation)). See, e.g. E. Remy Martin & Co., S.A. v. Shaw-Ross International Imports, Inc., 756 F.2d 1525, 1532 (11th Cir.), reh'g denied, enbanc, 765 F.2d 154 (11th Cir.1985) (party that discontinues use must show plans to resume commercial use).
Plaintiffs have in no way demonstrated their intent to resume commercial use of the "Brooklyn Dodgers" mark within two years after Los Angeles left Brooklyn in 1958 or at anytime within the ensuing quarter century. In Ambrit, the court ruled that registration of a mark during a period of abandonment is insufficient to prove intent to resume. Plaintiffs changed their name from "Brooklyn Dodgers" to "Los Angeles Dodgers" immediately after arriving in Los Angeles. They registered their new name "Los Angeles Dodgers" in 1958. They did not register simply as the "Dodgers" which plaintiffs claim is their true trademark until 1967. Here, plaintiffs neither registered the "Brooklyn Dodgers" mark prior to their resumed use of the mark in 1981 nor did they produce any other evidence indicating that they had plans to resume use of the "Brooklyn Dodgers" mark when they intentionally abandoned it and Brooklyn in 1958.
2. Resumption
Having determined that plaintiffs abandoned the "Brooklyn Dodgers" mark, the next inquiry is to determine the effect of that abandonment, given that plaintiffs have recently resumed limited use of the trademark.
Plaintiffs resumed use of the "Brooklyn Dodgers" mark in 1981 following an abandonment of almost a quarter of a century. In 1981, plaintiffs licensed Eastport Manufacturing Co. to merchandise T-shirts bearing, inter alia, the "Brooklyn Dodgers" name and logo. (PX 19; Tr. 79-81) In 1984, Los Angeles agreed to permit Martin Dorf to use photographs of the "Brooklyn Dodgers" as wall decorations in a restaurant in New Jersey called Burger Boys of Brooklyn. (PX 4; Tr. 278-79) In 1985, Los Angeles authorized United Airlines to broadcast radio commercials which referred to the "Brooklyn Dodgers." (PX 6; Tr. 282) In 1986, Los Angeles agreed to license the Bank of New England to run an advertisement using Los Angeles' trademarks incorporating the word Brooklyn. (PX 5; Tr. 281) In 1986, Los Angeles entered into an agreement with Oxford University Press to permit them to use the "Brooklyn Dodgers" mark in connection with a book. (PX 7; Tr. 283) In 1986, plaintiffs authorized Trench Manufacturing Co. to sell various items of merchandise bearing, inter alia, the "Brooklyn Dodgers" mark. (PX 20; Tr. 82) In approximately 1986, plaintiff Properties began promoting Los Angeles' trademarks incorporating the word Brooklyn, together with other "oldtimer" trademarks of Major League Clubs (that is, trademarks that had not been worn on the playing field for at least five years) under the name "The Cooperstown Collection." (Tr. 83-86; see also PX 18) In March 1987, plaintiffs and Roman Art Embroidery Corporation entered into a licensing agreement to manufacture and sell caps bearing, inter alia, the "Brooklyn Dodgers" mark. (PX 21; Tr. 83-84) Los Angeles licensed the use of their marks incorporating the word "Brooklyn" in connection with the television series "Brooklyn Bridge." Los Angeles licensed the Brooklyn Dodgers Hall of Fame, located in Brooklyn, to use Los Angeles' trademarks incorporating the word "Brooklyn." (Tr. 294) These were all sporadic licensings of the use of the words "Brooklyn Dodgers"; none was for continuous commercial use of the words "Brooklyn Dodgers" by plaintiffs themselves *1132 prior to 1986 when Properties entered the name in the Cooperstown Collection.
Defendants did not select the name "The Brooklyn Dodger" for their restaurant until sometime after October 14, 1987, and did not open their first bar and restaurant using their "Brooklyn Dodger" logo until March 1988. (Tr. 383, 480, 490-91, 541, 621) Plaintiffs, on the other hand, resumed use of the Brooklyn Dodgers mark, as indicated above, a relatively short time prior to the opening of defendants' restaurant.
While no case law in this Circuit has been found precisely on point, the Eleventh Circuit has addressed this issue and held that an abandonment, once established, is not cured by a resumption of use and that upon resumption of use of the mark the holder's rights flow from the date it resumes use. Ambrit, Inc. v. Kraft, Inc., 812 F.2d 1531 (11th Cir.1986). In Ambrit, plaintiff sought to cancel Kraft's "Polar B'ar" trademark due to abandonment pursuant to Section 45 of the Lanham Act. What was novel about Ambrit was the fact that at the time plaintiff sought cancellation of the mark, Kraft had resumed extensive use of it. The Eleventh Circuit held:
[Plaintiff] does not argue that Kraft's current use of the mark is insignificant and, indeed it is beyond dispute that abandonment would be out of the question had Kraft used the mark continuously from 1932 to 1980 in the same manner that it is now using the mark. Rather [plaintiff] contends that Kraft's non-use between 1932 and 1980 caused the mark to be void. [Plaintiff] asserts that Kraft's subsequent use beginning in 1980 does not retroactively cure its past abandonment. We agree.
Ambrit, 812 F.2d at 1550.
The court rejected Kraft's argument that its resumption of the use of the mark in 1980 made a cancellation of the registration in 1986 inappropriate. The court found that once abandoned, a mark may be cancelled even after its holder resumes commercial use of the mark. Id. at 1551. As applied to this case, then, once plaintiffs abandoned the "Brooklyn Dodgers" mark, they forfeited the right to exclude defendants from using the mark. Defiance Button Machine Co. v. C & C Metal Products Corp., 759 F.2d 1053, 1059 (2d Cir.1985) (when owner abandons mark, "others are no longer restrained from using it ..."). Even though plaintiffs resumed use of the mark before defendants began using the mark, plaintiffs' abandonment critically alters their rights to the mark. Ambrit, 812 F.2d at 1551 ("the competitor's right to cancel the registration flows not from the competitor's use of the mark but from the holder's abandonment"); First Nat. Bank v. Autoteller Systems Service Corp., 9 U.S.P.Q.2d 1740 (BNA) (Trademark Trial & App.Bd. 1988) (Abandonment cannot be reversed by subsequent re-adoption of a mark"); Parfums Nautee Ltd. v. American International Industries, 22 U.S.P.Q.2d (BNA) 1306 (Trademark Trial & App.Bd.1992) (same). See also Sodima, 662 F.Supp. at 850 (citation omitted) ("Once a mark is abandoned, subsequent use does not retroactively cure its past abandonment. A court may cancel a mark because of abandonment even after the registrant has resumed use"). Therefore, in 1988 defendants' in this case had rights equal to plaintiffs' rights in using the mark and acquiring the mark. Cerveceria India, 892 F.2d at 1027 (citing Mission Dry Corp. v. Seven-up Co., 193 F.2d 201, 203 (CCPA 1951) ("Once a trademark is abandoned, its registration may be cancelled even if the registrant resumes use").
This analysis of the effect of the abandonment of a trademark comports with the view expressed by one highly regarded commentator in this area who observes:
Once a mark has been abandoned, "any other person has the right to seize upon it immediately ... and thus acquire a right superior not only to the right of the original user but of all the world ... Even though a mark has been intentionally abandoned, if there is no intervening right thereto, it would be illogical to deny its former owner the same right to appropriate it as any other party would have ... Appropriation after abandonment is a new phase in the history of the mark, and it should be considered without reference to the abandonment, whether appropriated by a stranger or reused by its prior owner. Priority, however, goes back only to the *1133 time the first owner reappropriated the mark.
Callmann, The Law of Unfair Competition, Trademarks, and Monopolies § 19.67 at 515 (1989) (emphasis added).
These legal principles, when applied to the facts at bar, make plain that if plaintiffs have any interest in a "Brooklyn Dodgers" mark, that interest arose in 1981 when commercial use of the mark resumed after a twenty-three (23) year hiatus. Plaintiffs' preemptive rights in the "Brooklyn Dodgers" mark would extend only to the precise goods on or in connection with which the trademark was used since its resumption (i.e. clothing, jewelry, novelty items). (See the various uses listed at PX 2)
In other words, the fact that plaintiffs resumed use prior to defendants' use does not mean that plaintiffs may preclude defendants' use of the mark in their restaurant business in Brooklyn. See Manhattan Industries, Inc. v. Sweater Bee by Banff, Ltd., 627 F.2d 628, 630 (2d Cir.1980) (where plaintiff began using abandoned mark slightly prior to defendant, significant use by defendant precluded plaintiffs' exclusivity; "concept of priority in the law of trademarks is applied `not in its calendar sense' but on the basis of `the equities involved,'" quoting Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 534 (2d Cir.1964)). The Supreme Court discussed the common law allocation of trademark rights in Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713 (1916). In setting forth an exception to the blanket application of the "prior use" rule, the Court stated:
In the ordinary case of parties competing under the same mark in the same market, it is correct to say that prior appropriation settles the question. But where two parties independently are employing the same mark upon goods of the same class, but in separate markets wholly remote from one another, the question of prior appropriation is legally insignificant, unless at least it appear [sic] that the second adopter has selected the mark with some design inimical to the interest of the first user ...
Hanover, 240 U.S. at 415, 36 S.Ct. at 361. See also Sweetarts v. Sunline, Inc., 380 F.2d 923, 928 (8th Cir.1967) (prior trademark user has valid common law trademark within area developed by it). See, e.g., Li'l Red Barn, Inc. v. Red Barn System, Inc., 322 F.Supp. 98, 109 (N.D.Ind.), aff'd, 174 U.S.P.Q. (BNA) 193 (7th Cir.1972) (restaurant use of mark did not infringe with convenience store use of mark).
The court concludes that plaintiffs' interest, which is a new phase in the history of this mark, is only in the fields in which the mark has been used since plaintiffs chose to resume its use. See, e.g., Conwood Corp. v. Loew's Theatres, Inc., 173 U.S.P.Q. (BNA) 829 (Trademark Trial & App.Bd.1972) (where trademark holder resumed use after competitor began using mark, trademark holder's use was new). The evidence makes clear that the uses to which the plaintiffs put their marks were generally sportswear and novelty items which are in no way related to defendants' restaurant and tavern services in the limited geographic area of New York City known as Brooklyn.
In addition to using the "Brooklyn Dodgers" mark for different purposes than defendants, plaintiffs presented no evidence that their commercial uses since 1981 (as opposed to their uses as the Brooklyn Dodgers baseball team prior to 1958) extend into defendants' geographical area of use. "[I]f the use of the marks by the registrant and the unauthorized user are confined to two sufficiently distinct and geographically separate markets, with no likelihood that the registrant will expand his use into defendant's market, so that no public confusion is possible, then the registrant is not entitled to enjoin the junior user's use of the mark." Dawn Donut Co. v. Hart's Food Stores, Inc., 267 F.2d 358, 364 (2d Cir.1959). See also Tally-Ho, Inc. v. Coast Community College Dist., 889 F.2d 1018, 1023 (11th Cir.1989) (subsequent use may establish common law rights to same mark for similar products as long as there is no competitive overlap with prior user); Comidas Exquisitos, Inc. v. O'Malley & McGee's Inc., 775 F.2d 260, 262 (8th Cir. 1985) (use in geographically separate and distinct areas with no real competition or likelihood of expansion presents no cause for relief); Cotton Ginny, Ltd. v. Cotton Gin, *1134 Inc., 691 F.Supp. 1347, 1352 (S.D.Fla.1988) (despite plaintiff's prior use, "trademark is acquired only within those markets where the mark has been used and its meaning become known") (citing Hanover, 240 U.S. at 415-16, 36 S.Ct. at 361 and Spartan Food Systems, Inc. v. HFS Corp., 813 F.2d 1279, 1282-84 (4th Cir.1987)). See, e.g., Wiener King, Inc. v. The Wiener King Corp., 546 F.2d 421 (3rd Cir.1976), published at, 192 U.S.P.Q. 353 ("Absent proof that plaintiff's `advertising,' `expansion,' or `reputation' would operate to extend plaintiff's trade area beyond the locale where its products are sold, we are obliged to limit plaintiff's protection to just that area of sale").
Plaintiffs have not in any way demonstrated that the restaurant business in Brooklyn is a market into which they might naturally expand. See Tally-Ho, 889 F.2d at 1023 (rights limited to territories of actual use or natural expansion). In order for New York to be considered to be within plaintiffs' zone of expansion, the public in New York must be familiar with plaintiffs as providers of restaurant services under the "Brooklyn Dodgers" mark. See also Stouffer Corp. v. Winegardner & Hammons, Inc., 502 F.Supp. 232, 236 (S.D.Ohio 1980) (protection requires secondary meaning in area such that public associates name with services in that area) (citation omitted); Hot Shoppes, Inc. v. The Hot Shoppe, Inc., 203 F.Supp. 777, 783 (M.D.N.C. 1962) (necessary for substantial section of purchasing public to identify name with services). See generally RUDOLF CALLMANN, THE LAW OF UNFAIR COMPETITION, TRADEMARKS AND MONOPOLIES, v. 3, § 19.19-23 (1983) (discussing zones of protection); William Jay Gross, The Territorial Scope of Trademark Rights, 44 U.MIAMI L.REV. 1075 (1990) (discussing various categories of zones of protection).
For example, even if plaintiffs' post-1981 uses indicate that Brooklyn is within plaintiffs' zone of expansion for novelty items, plaintiffs only post-1981 restaurant related usepermitting a third party to use photographs as wall decorations in New Jersey does not demonstrate that plaintiffs' zone of expansion includes using the "Brooklyn Dodgers" name in the context of commercial restaurant services in Brooklyn. See also Coffee Dan's, Inc. v. Coffee Don's Charcoal Broiler, 305 F.Supp. 1210, 1213 (N.D.Ca.1969) (in context of motion for preliminary injunction, defendant's San Francisco restaurant was sufficiently far from plaintiff's Los Angeles restaurant to preclude finding of infringement). Compare McDonald's Corp. v. McBagel's, Inc., 649 F.Supp. 1268 (S.D.N.Y.1986) (where plaintiff had national chain, as opposed to a single use, defendants' name McBagel's infringed restaurant chain's mark using the formatives "Mc" and "Mac") with National Automobile Club v. National Auto Club, Inc., 365 F.Supp. 879, 886 (S.D.N.Y.), aff'd without op., 502 F.2d 1162 (2d Cir.1974) (while both plaintiff and defendant rendered national services, the type of services rendered by defendant were sufficiently distinct to be outside plaintiff's zone of expansion).
This court holds that plaintiffs' failure to utilize the "Brooklyn Dodgers" mark for any significant, commercial trademark use between 1958 and 1981 constituted an abandonment of that mark and dramatically limits the protection to which that mark is entitled since its resumption. See, e.g. Mission Dry Corp. v. Seven-up Co., 193 F.2d 201 (CCPA 1951) (Lanham Trademark Act of 1946 "provides for the cancellation of a registration of any mark which has been so abandoned ... whether or not there was confusing similarity between the marks of the parties"). Although there was evidence of a very limited number of food services and food items (Dodger Dogs, etc.) in plaintiffs' stadium in Los Angeles and training camp in Florida, no evidence was introduced by plaintiffs on this critical issue to prove that this mark, "Brooklyn Dodgers," has been used by plaintiffs or licensed by plaintiffs for a restaurant such as the singularly nostalgic restaurant defendants operate in Brooklyn. Accordingly, the court declines to enjoin defendants' very limited use of the "Brooklyn Dodger" mark by defendants for use in connection with its local restaurants directed toward older Brooklyn Dodgers fans in the Brooklyn community in the city of New York. The court also declines to cancel any registration of the "Brooklyn Dodgers" mark by plaintiffs for use of that name for the sale *1135 of goods such as T-shirts, caps, memorabilia, etc.
3. Laches
Because this court concludes that defendants prevail on their affirmative defense of abandonment, it is not necessary to address defendants' second affirmative defense of laches.
D. Plaintiffs' State Law Claims
1. Unfair Competition
Plaintiffs claim for unfair competition under New York State law shares many common elements with the Lanham Act claims of false designation of origin and trademark infringement, including necessary proof of actual confusion before an award of damages may be granted. See W.W.W. Pharmaceutical, 984 F.2d at 576 (citations omitted). This court has concluded that the marks used by Los Angeles when it was located in Brooklyn and defendants' mark is not confusingly similar. This court has also concluded that plaintiffs abandoned the mark. The findings provide defendants with an effective affirmative defense to plaintiffs' claim of unfair competition. Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1043 (2d Cir.1980) ("Since New York state law on the issue of abandonment, even if applicable, is not particularly well-developed, it is appropriate to apply federal law by analogy, with respect to both the state and federal claims"). See Charvet S.A. v. Dominique France, Inc., 736 F.2d 846 (2d Cir.1984) (in action involving Lanham Act and state unfair competition and dilution claims, abandonment by appellant precluded appellants' use to the extent of its abandonment and defeated its claims, state and federal, concerning abandoned markets).
2. Dilution Claim
Plaintiffs' also claim that defendants have violated New York's anti-dilution statutes. N.Y.Gen Bus.L. § 368-d (McKinney 1984).[23]
"A claim for dilution rests on the allegation that a defendant is attempting to "feed[] upon the business reputation of an established distinctive trade-mark or name." W.W.W. Pharmaceutical, 984 F.2d at 576 (quoting Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 545, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977)).
In this circuit, the test for dilution has consisted of three elements:
(1) distinctiveness of the mark, either that the mark is "truly of distinctive quality" or has acquired secondary meaning in the eyes of the public; (2) likelihood of dilution, either as the result of blurring of product identification or the tarnishing of an affirmative association that a mark has come to convey; and (3) predatory intent.
W.W.W. Pharmaceutical, 984 F.2d at 576-77 (citing Lobo Enters., Inc. v. Tunnel, Inc., 693 F.Supp. 71, 79 (S.D.N.Y.1988)) (quoting Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625-26 (2d Cir.1983)); Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1030 (2d Cir.1989). Because the court has concluded that plaintiffs abandoned their right to the "Brooklyn Dodgers" mark when they left Brooklyn, any right that they may have established upon resumption is significantly diminished and remote. Therefore, given the dramatic dilution caused by plaintiffs' own actions, plaintiffs have failed to prove distinctiveness, likelihood of dilution, or predatory intent necessary to prevail on a claim of dilution.
E. Defendants' Counterclaims
In their Amended Answer, defendants' counterclaimed for the cancellation of various trademark registrations for "Brooklyn Dodgers" file by plaintiffs after defendants' application to register the "Brooklyn Dodger" servicemark was filed on April 28, 1988. These cancellations are sought on the ground that plaintiffs' registrations: a) falsely and deceptively suggest and imply a connection *1136 between plaintiffs and the Borough of Brooklyn which has not existed since 1958; b) inherently and directly misrepresent the origin of plaintiffs' goods and services as Brooklyn, New York when this is allegedly untrue in violation of 15 U.S.C. § 1052; and c) plaintiffs' use of a "Brooklyn Dodgers" mark suggests an association with defendants which does not exist, in violation of 15 U.S.C. § 1125(a).
Defendants' counterclaims are denied. As discussed above, plaintiffs resumed use of the "Brooklyn Dodgers" mark prior to defendants' use. Plaintiffs, therefore, have acquired the right to use and register the mark to the extent of their resumed use (i.e. clothes, novelty items, and promotional features) or to the extent that it does not infringe upon the prior uses of others.
Submit order on 10 days notice.
NOTES
[1] On July 25, 1991 plaintiffs amended their complaint to name David Senatore, Richard Picardi, and Kevin Boyle, individually, as defendants.
[2] In 1989, after this action had commenced, plaintiffs filed registrations for three different "Brooklyn Dodgers" marks. On July 7, 1992 plaintiffs filed to register a "Brooklyn" mark in athletic script.
[3] No fewer than eleven Dodgers' trademarks are presently federally registered with the United States Patent and Trademark Office. (PX 2) While some of these marks were registered within the last three years, the mark Dodgers and the mark Dodgers in the distinctive Dodgers script were initially federally registered as early as 1967. (PX 2 at 23)
Los Angeles ranks consistently among the top Major League Clubs in terms of retail sales of licensed merchandise bearing their trademarks. In 1991 alone, Properties estimates that $100 million worth of goods bearing Los Angeles' trademarks were sold. (Tr. 77-78, 90-91) Defendants' own expert testified that "[w]e don't dispute as far as I understand, certainly I don't dispute that Los Angeles Dodgers is a well-know name. Brooklyn Dodger is probably still to some degree a well-known name." (Tr. 421) Defendants' counsel similarly represented during trial that defendants "certainly have never contested and concede the popularity of the Los Angeles Dodgers baseball team." (Tr. 254)
[4] In November 1990, for reasons unrelated to this litigation, defendants closed the restaurant operated by BUMS, Inc. In June 1991 the individual defendants, after consulting with trademark counsel (Tr. 660, 729), through defendant 9506, opened a restaurant on Avenue L in Brooklyn under the name "The Brooklyn Dodger Sports Bar and Restaurant" to replace BUMS' establishment. By Order of the court (Wood, J.) dated March 31, 1992 defendants were preliminarily enjoined from the use of the "Brooklyn Dodger" mark at 9506's restaurant, although not at SNOD's, pending this court's decision.
[5] 15 U.S.C. § 1114 provides in pertinent part:
Any person who shall, without the consent of the registrant, ... (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ... shall be liable in a civil action by the registrant for the remedies hereinafter provided.
15 U.S.C. § 1117 provides in pertinent part: When a violation of any right of the registrant of a mark registered in the Patent and Trademark Office, or a violation under section 1125(a) of this title, shall have been established in any civil action arising under this chapter, the plaintiff shall be entitled, subject to the provisions of sections 1111 and 1114 of this title, and subject to the principles of equity, to recover (1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action....
Plaintiffs withdrew their claim, under Paragraph 4 of their Prayer for Relief for an Order, pursuant to 15 U.S.C. § 1117, concerning damages, including treble damages together with a reasonable attorneys' fee, in an amount presently not determinable, as well as the costs, fees and disbursements of the action.
[6] 15 U.S.C. § 1125 provides in pertinent part:
Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same ... shall be liable to a civil action by ... any person who believes that [he or she] is or is likely to be damaged by the use of any false description or representation.
[7] As part of their remedy, plaintiffs seek the destruction of all physical objects which make use of the "Brooklyn Dodgers" mark. 15 U.S.C. § 1118 provides:
In any action arising under this chapter, in which a violation of any right of the registrant of a mark registered in the Patent and Trademark Office shall have been established, the court may order that all labels, signs, prints, packages, wrappers, receptacles, and advertisements in the possession of the defendant, bearing the registered mark or any reproduction, counterfeit copy, or colorable imitation thereof, and all plates, molds, matrices, and other means of making the same, shall be delivered up and destroyed.
[8] The court notes that at various times since opening their restaurants, defendants have offered T-shirts and caps to the public. However, the court finds that this was a minuscule portion of defendants' business as such items were offered principally as promotional items. (Tr. 650, 755)
[9] See supra p. 1109.
[10] The first pair of questions read as follows:
4a Do you associate this name with anyone or anything or do you think that it's just the name of the restaurant without any other association, or don't you know?"
4b IF YES: What or who do you associate that name with?
[11] In criticizing the leading nature of plaintiffs' survey, Dr. Rappeport drew proof from an inconsistency in the survey itself. Dr. Rappeport pointed out that 38% of those who did not associate the name with something else (according to question 4a) still said authorization was needed. Dr. Rappeport explained the inconsistency of this result in the following manner:
The obvious question is "Why would people who did not associate The Brooklyn Dodger restaurant with anything else, let alone baseball, suddenly decide the restaurant needed permission from baseball to operate?" From our experience, by far the most reasonable answer is that the message sent to respondents who said "no association" in answer to 4a was that their initial response was incorrect. Thus, when they are asked about whether anyone gave permission, the natural tendency for many people is to assume that someone must have given permission and the "test" is to figure out who.
(DX BB at 3)
[12] In addition to criticizing the leading nature of plaintiffs' questions, Dr. Rappeport criticized the absence of a "Don't Know" option in plaintiffs' survey. (DX BB at 4)
[13] Dr. Rappeport suggested:
The Brooklyn Bridge restaurant (perhaps one needs permission from New York City)
The Brooklyn Yankees restaurant (alluding to the New York Yankees baseball team)
The Brooklyn Eagles restaurant (named after a defunct newspaper)
(DX BB at 4)
[14] Plaintiffs argue that the survey was controlled by not changing the question structure that is, using the same questions that Dr. Rappeport criticized and comparing the variations, if any. The court concludes that this "control" was insufficient and produced two flawed surveys rather than one sufficient set of surveys.
[15] The court is cognizant of the fact that trademark rights flow from use, and not from registration, of the mark. Nevertheless, plaintiffs chose to file a registration for its "Dodgers" mark in 1976. They failed to register any "Brooklyn Dodgers" mark until after defendants' application was filed. Then, in 1989 plaintiffs filed registrations for three different "Brooklyn Dodgers" marks. (PX 2 at 04293, 04303, 04304). This court finds it inescapable that, given the good faith demonstrated by defendants in their having conducted trademark searches on each of the marks they considered, this entire controversy and litigation might have been avoided if plaintiffs had undertaken the simple task of filing an application to register a "Brooklyn Dodgers" trademark as notice to potential users.
[16] While the Second Circuit has determined that prima facie abandonment establishes only a rebuttable presumption of abandonment that plaintiffs may counter by satisfying a burden of producing evidence of intent to resume, Lehman, 625 F.2d at 1044, other circuits have held that the burden of persuasion shifts to the trademark owner to show intent to resume. See Stanley A. Bowker, Jr., The Song is Over But the Melody Lingers On: Persistence of Goodwill and the Intent Factor in Trademark Abandonment, 56 FORDHAM L.REV. 1003, 1021 (1988) (discussing differences among circuits in allocating evidence burden).
[17] That is, they sold no goods or services under the mark and did not license its use to third parties in the ordinary course of trade.
[18] In fact, plaintiffs did not even attempt to register a "Brooklyn Dodgers" mark or a "Brooklyn" mark until well after this action had been filed.
[19] While Los Angeles ceased commercial use of the trademark because of its relocation from Brooklyn to Los Angeles, its motive, justifiable or not, is irrelevant. Stetson, 955 F.2d at 851. Nevertheless, Los Angeles' nonuse in this case was voluntary. Courts have been more reluctant to find an absence of intent to resume where the trademark owner had an excusable reason for nonuse that is, where nonuse was involuntary. See, e.g., Defiance Button Machine Co. v. C & C Metal Products Corp., 759 F.2d 1053, 1059 (2d Cir.), cert. denied, 474 U.S. 844, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985) (no abandonment where cessation of business was involuntary); American International Group, Inc. v. American International Airways, Inc., 726 F.Supp. 1470 (E.D.Pa. 1989) (where airline declared bankruptcy, remaining goodwill and lack of intent to abandon precluded finding abandonment).
[20] The outcome in Defiance, finding no abandonment, is distinguishable from the case at hand because the court in Defiance held that the continued goodwill toward the button company after it stopped producing goods and the fact that the company intended to retain its trademark for some commercial use precluded a finding of abandonment. Similarly, the court in Schenley Industries, 441 F.2d 675 held that continued goodwill and lack of intent to abandon precluded finding of abandonment.
In the unique facts of this case, however, plaintiffs have not succeeded in demonstrating that much goodwill in Brooklyn survived Los Angeles' move in 1957. But more importantly, while plaintiff in Defiance was at least able to demonstrate an intent not to abandon, plaintiffs here have not even demonstrated an intent not to abandon, much less the statutory requirement of intent to resume. A mark retains "residual" goodwill "if the proponent of a mark stops using it but demonstrates an intent to keep the mark alive for use in resumed business." Pan American World Airways, Inc. v. Panamerican School of Travel, Inc., 648 F.Supp. 1026, 1031 (S.D.N.Y.), aff'd without op., 810 F.2d 1160 (2d Cir.1986) (citing Defiance, supra). The claim to residual goodwill will not preclude a finding of abandonment where, as in this case, the owner unequivocally declares its intention to discontinue use. SIEGRUN D. KANE, TRADEMARK LAW: A PRACTITIONER'S GUIDE 167 (1987).
[21] See also S. Bowker, supra, at 1022 (Lanham Act, as interpreted by Fifth Circuit in Exxon Corp. v. Humble Exploration Co., 695 F.2d 96 (5th Cir.), reh'g denied, 701 F.2d 173 (5th Cir. 1983), requires "not just use, but active commercial use").
[22] See also Susan Naresh, Incontestability and Rights in Descriptive Trademarks, 53 U.CHI. L.REV. 953, 981 n. 120 (1986) (distinguishing between intentional and unintentional abandonment). "`Unintentional abandonment' contrasts with `intentional abandonment': the latter occurs when use of the mark has been discontinued with intent not to resume it, and the former when the registrant's conduct causes the mark to lose its significance as a indication of origin." S.Naresh, supra, at 981 n. 120 (citing Lanham Act, 15 U.S.C. § 1127(a), (b)). Plaintiffs' abandonment in this case fits both definitions, to some extent. On one hand, plaintiffs' discontinued use of the "Brooklyn Dodgers" mark for over 20 years with no intent to resume use. On the other hand, plaintiffs' moved from Brooklyn to Los Angeles and adopted the "Los Angeles Dodgers" trademark, causing the "Brooklyn Dodgers" mark to lose its significance as a name of an existing sports club.
[23] The statute provides:
Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, not withstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1522524/ | 156 B.R. 303 (1990)
In re GRANADA, INC., Debtor.
Peter W. BILLINGS, trustee for Granada, Inc., Plaintiff/Appellee,
v.
KEY BANK OF UTAH, Commercial Security Bank and Commercial Security Key Bank, Defendants/Appellants.
Civ. No. C-90-667W, Bankruptcy No. 87C-00693.
United States District Court, D. Utah, Central Division.
November 20, 1990.
*304 Peter W. Billings, Jr., Robert P. Rees, Salt Lake City, UT, for plaintiff, trustee.
Robert D. Merrill, Carolyn Montgomery, William R. Richards, Salt Lake City, UT, for defendants.
Robert A. Goodman, Virginia S. Smith, Salt Lake City, UT, for First Interstate Bank.
Jeffrey W. Shields, Salt Lake City, UT, for West One Bank.
Memorandum Decision and Order
WINDER, Chief Judge.
This matter is before the court on appeal from a bankruptcy court Memorandum Opinion and Order dated May 25, 1990. 115 B.R. 702. A hearing was held on October 10, 1990, at which the trustee, Peter W. Billings, Jr., represented himself. He was assisted by Robert P. Rees. The defendants were represented by William R. Richards. The court allowed First Interstate Bank of Utah and West One Bank, Utah to submit memoranda and appear as amicus curiae. First Interstate was represented at the hearing by Robert A. Goodman and West One was represented by Jeffrey W. Shields. The court had carefully read the relevant documents submitted by the parties before the hearing, and at the conclusion of the hearing, the court took the matter under advisement. Having considered the matter further, the court now renders the following memorandum decision and order.
This court must accept the bankruptcy court's findings of fact unless the findings are clearly erroneous. Bankr.Rule 8013; Rowe Int'l v. Herd, 840 F.2d 757, 759 (10th Cir.1988). In addition, this court must make a de novo review of the bankruptcy court's legal conclusions. Id. The defendants do not contend on appeal that the bankruptcy court's factual findings are clearly erroneous. Consequently, this court will accept and briefly set out the facts as found by the bankruptcy court.
During all times relevant to this motion, Granada was a general partner in two Utah limited partnerships, Ashley Creek, Ltd. and Suntrail Enterprises. Granada was *305 also a partner in one Utah general partnership, Westwood Partners. These three partnerships will be referred to collectively as "the partnerships." Between 1982 and 1984 Commercial Security Bank made a loan to each of the partnerships. The loans were secured by partnership property and guaranteed by C. Dean Larsen, the president of Granada. Key Bank is the successor-in-interest to Commercial Security Bank. The three defendants will be referred to collectively as "the defendant" or "Key Bank."
The dispute in this case grows out of a particular management practice carried on by Granada. As the partnerships' general partner, Granada did not allow funds to accumulate in the individual partnerships. As revenues were received by the partnerships, Granada would "upstream" the excess funds to an account in Granada. Such transactions were recorded on Granada's and the partnerships' books as either increases in Granada's debt to the partnerships or reductions in the partnerships' debt to Granada. When the partnerships needed funds to meet expenses, Granada would "downstream" funds back to the partnerships. These transactions were recorded on Granada's and the partnerships' books as either reductions in Granada's debt to the partnerships or increases in the partnerships' debt to Granada. Checks were then drawn on the partnerships' accounts to cover the partnerships' immediate obligations. Funds were transferred to the partnerships only when necessary to meet expenses. Otherwise, the funds upstreamed from the partnerships were used to meet Granada's expenses or transferred to other partnerships. Pursuant to this practice, the defendant received checks drawn on the partnerships' accounts as payments on the loans the bank had made to the partnerships.
The bankruptcy court found that the debts created by the upstreaming and downstreaming of funds between Granada and the partnerships were never reduced to "notes and repayment schedules were never generated." Billings v. Key Bank, 115 B.R. 702, 705 (Bankr.D.Utah 1990). The entities relied entirely on bookkeeping entries to keep track of the transfers. The bankruptcy court also found that "Granada controlled the bank accounts of the partnerships. . . ." Id. at 706.[1] For purposes of cash management, Granada and the partnerships operated as one entity.
On February 13, 1987, Granada filed a Chapter 11 bankruptcy petition, and in June 1987 the trustee was appointed. The trustee brought this action against Key Bank seeking to recover preference payments made by Granada. The trustee argued that Granada preferred Key Bank by transferring funds to the partnerships which transferred the funds to the bank and that he should be permitted to recover directly from Key Bank as the initial transferee under 11 U.S.C.A. § 550(a) (West 1979 & Supp.1990).[2] The trustee took the position that the partnerships were not transferees under § 550. The trustee maintained that the partnerships were mere conduits between Granada and the bank. In response, Key Bank denied that the partnerships were conduits. The bank insisted that the partnerships were initial transferees and the bank was a subsequent *306 transferee. The bankruptcy court agreed with the trustee.
The bankruptcy court divided its analysis into two parts. The court first found that the transfers from Granada were preference payments under 11 U.S.C.A. § 547(b) (West 1979 & Supp.1990). The court found that all the elements of § 547(b) were met including the requirement that the transfers were made "to or for the benefit of a creditor." Id. The court determined that the transfers from Granada benefitted Granada's president, C. Dean Larsen, since he personally guaranteed the loans from Key Bank to the partnerships.
On appeal the defendant takes issue with this part of the bankruptcy court's analysis. The defendant argues that the bankruptcy court's reasoning ignores the fact that the funds were initially transferred from the debtor to the partnerships. Since Larsen had no contingent liability on the debt between Granada and the partnerships, the defendant argues that Larsen could not be a creditor who benefitted from the initial transfer.
This court will not reexamine the bankruptcy court's conclusion that the transfers were preference payments under § 547. Even if the transfers were not preferential as to Larsen, they were clearly preferential as to the partnerships. Consequently, further analysis under § 547 is not helpful to the ultimate resolution of this dispute.
The second part of the bankruptcy court's analysis addressed the issue of liability under § 550. That court determined that the defendant was an initial rather than a subsequent transferee under § 550(a). The court reasoned that since the partnerships had no practical dominion or control over the transferred funds, they should be considered nothing more than mere conduits through which the payments passed. Accordingly, the bankruptcy court found that the trustee may recover the funds from the defendant as the initial transferee. This court believes that the bankruptcy court's analysis under § 550 must be reversed for the reasons stated below.
The conduit theory has been developed by the courts in an effort to avoid unfairness that might result from the literal application of 550(a). Gropper v. Unitrac, S.A. (In re Fabric Buys of Jericho, Inc.), 33 B.R. 334 (Bankr.S.D.N.Y.1983), citing, 4 Collier on Bankruptcy § 550.02, at 550-8 (15th ed. 1985). The concerns underlying development of the conduit theory are reflected in Chief Justice Cardozo's commonly cited language in Carson v. Federal Reserve Bank:
The person to be charged with liability, if he has parted before the bankruptcy with title and possession, must have been more than a mere custodian, an intermediary or conduit between the bankrupt and the creditor. Directly or indirectly he must have had a beneficial interest in the preference to be avoided, the thing to be reclaimed.
254 N.Y. 218, 172 N.E. 475, 482 (1930). In Carson the court held that a federal reserve bank that acted as an agent for its member banks in collecting funds from an insolvent bank was not liable for the funds collected and credited to its members' accounts. Following the rationale in Carson, courts have recently held that preference payments cannot be recovered from entities that act as nothing more than conduits between debtors and their preferred creditors. See e.g. Kaiser Steel Resources, Inc. v. Jacobs (In re Kaiser Steel Corp.), 110 B.R. 514 (D.Colo.1990), aff'd on other grounds, Kaiser Steel Corp. v. Charles Schwab & Co., Inc., 913 F.2d 846 (10th Cir.1990); In re Fabric Buys of Jericho, Inc., 33 B.R. 334. These courts have concluded that a conduit does not constitute an initial transferee under § 550(a). Instead, a creditor who received a preference payment from a conduit is liable as an initial transferee. This prevents the creditor from raising the defense provided in § 550(b) for subsequent transferees.[3]
*307 The conduit theory may be used either offensively or defensively. An intermediary may defend against an action to recover a preference by demonstrating that it was a mere conduit between a debtor and its creditor. In re Kaiser Steel Corp., 110 B.R. 514; In re Fabric Buys of Jericho, Inc., 33 B.R. 334. Alternatively, in an effort to bypass an intermediary, a trustee may argue that the intermediary served as nothing more than a conduit of funds. Lowry v. Security Pacific Business Credit, Inc. (In re Columbia Data Prod. Inc.), 892 F.2d 26 (4th Cir.1989); Ross v. John Mitchell, Inc. (In re Dietz), 94 B.R. 637 (Bankr. 9th Cir.1988), aff'd, 914 F.2d 161 (9th Cir.1990). In the present case the trustee asserts the conduit theory offensively in order to prevent Key Bank from defending under § 550(b). The critical question is whether the partnerships acted as conduits such that Key Bank should be treated as the initial transferee under § 550(a).
Courts have used several different tests in their effort to determine the circumstances under which an entity should be considered a conduit. Billings v. Key Bank, 115 B.R. at 709 n. 12.[4] The bankruptcy court did not apply all of these tests. The bankruptcy court believed that since the partnerships qualified as conduits under the "dominion and control" test, the application of any other test was unnecessary. This court believes that the bankruptcy court's approach is unnecessarily restrictive. However, the court believes that the partnerships in this case do not qualify as conduits even if our analysis is limited to the dominion and control test.
The dominion and control test was introduced by the Seventh Circuit in Bonded Fin. Serv. v. European Am. Bank, 838 F.2d 890. In re Kaiser Steel Corp., 105 B.R. 639, 646 (Bankr.D.Colo.1989), rev'd, 110 B.R. 514 (D.Colo.1989). The Seventh Circuit determined that the "minimum requirement of status as a `transferee' is dominion over the money or other asset, the right to put the money to one's own purposes." Id. at 893. Conversely, an entity through which a preference payment is transferred that has no dominion over the payment is a mere conduit that cannot be required to account for the payment.
In Bonded the debtor, Bonded Financial Services, sent a check to European American Bank to be deposited in a creditor's general account. The check was made payable to the bank. Ten days later the creditor instructed the bank to remove the funds from the creditor's general account and apply them to a loan account at the same bank. Soon thereafter the creditor satisfied the balance of the loan and the bank released its security interest in the creditor's collateral. Since the creditor was insolvent, the debtor's trustee attempted to recover the preference payment from the bank. The court stated:
As the Bank saw the transaction on January 21, it was Ryan's agent for the purpose of collecting a check from Bonded's bank. It received nothing from Bonded that it could call its own; the Bank was not Bonded's creditor, and Ryan owed the Bank as much as ever. the Bank had no dominion over the $200,000 until January 31, when Ryan instructed the Bank to debit the account to reduce the loan;
Id. at 893-94 (Citations omitted). On this basis the court held that the bank was not an initial transferee but a conduit between Bonded and Ryan.
The Eleventh Circuit applied a control test in Nordberg v. Societe Generale (In re Chase & Sanborn, Corp.), 848 F.2d 1196 (11th Cir.1988), to determine whether a bank was an initial transferee or merely a conduit. The court held that a bank that had received funds from a debtor was a *308 mere conduit of the funds between the debtor and the bank's customer. The court arrived at this conclusion despite the fact that the bank had technically become its customer's creditor since the bank had honored a check drawn on the funds subsequently received from the debtor. The court held that the transaction in question should be viewed as one in which the bank allowed its customer to draw upon funds that were simultaneously deposited into the customer's account. Viewed in this way, the bank had no control over the funds whatsoever and could not be considered an initial transferee.
A control test was also applied by a district court in the Tenth Circuit. In In re Kaiser Steel Corp., 110 B.R. 514, a Colorado district court stated:
[The defendant] never held a beneficial interest in any [of the debtor's] stock, received no consideration for facilitating the conversion of its customers' stock, and had no ability to control the disposition of funds paid to its customers in the merger. It was simply a financial intermediary, not a "transferee."
Id. at 521. The alleged conduit and defendant, Charles Schwab & Co., Inc., was a discount brokerage house. Schwab had received funds from the debtor and distributed the funds to Schwab's customers as part of a stock redemption program. The bankruptcy court concluded that Schwab's status as a conduit or transferee should turn solely on agency principles. On this basis the bankruptcy court found that as an agent acting on behalf of an undisclosed or partially disclosed principle, Schwab could not be considered a conduit as a matter of law. The district court reversed the bankruptcy court's ruling because "Schwab's role in the stock redemption was almost identical to that of the securities clearinghouses and related entities who were earlier dismissed from the action." Id. at 520-21.
The court believes that Bonded, In re Chase & Sanborn, Corp. and In re Kaiser Steel Corp. are distinguishable from the present case. Unlike the conduits in those cases, the partnerships in the present case received something from Granada that they could call their own. They received funds with which they were able to reduce their liability to Key Bank. Unlike the situation in the cases discussed above, a debtor-creditor relationship did exist between Granada and the partnerships. Unlike the situation in those cases, the partnerships in the present case did have dominion over the funds received from Granada until payments were made to Key Bank.
The dominion and control test as set out in Bonded requires only that an entity have the "right to put the money to [its] own purposes." In the present case, the partnerships had the right and did, in fact, put the money to their own purposes. They used the funds to reduce their debt to Key Bank. In contrast, the conduits in Bonded and the cases following Bonded had no right, power, or claim of any kind to the funds transferred through them. The partnerships in the present case were simply not financial intermediaries and couriers in the same way as were the conduits in Bonded and the cases following it.
The bankruptcy court was concerned with the fact that Granada not only controlled the funds transferred to the partnerships but also controlled the disposition of the partnerships' funds. This fact, however, does not mean that the partnerships had no control over the money. The partnerships properly exercised control over the funds through Granada, their general partner. Granada's control over the funds was also the partnerships' control over the funds. The trustee has offered no persuasive reason why Granada should be treated as an entity foreign to the partnerships. To follow the trustee's reasoning would mean that partnerships would almost always be conduits of their general partners since general partners always control their partnerships. Such a rule would, in this court's opinion, go far beyond what the conduit theory was designed to accomplish.
Other tests developed in an effort to distinguish between a conduit and an initial transferee support this court's belief that the partnerships in the present case were *309 not conduits. Some courts have indicated that an entity is not a conduit if the entity is benefitted by the transfer of funds through it.[5] In In re Columbia Data Prod., Inc., 892 F.2d 26, the debtor made preference payments to a creditors committee which transferred the funds to a creditor named Logan. Logan transferred the funds to one of its creditors, Security Pacific Business Credit. Logan had previously assigned the funds to Security Pacific. The debtor's trustee attempted to recover the funds from Security Pacific as an initial transferee under § 550. The trustee argued among other things that Logan was a conduit since it "did not exercise dominion and control over the transfers. . . ." as required by Bonded. The trustee reasoned that Logan could not exercise control over the funds because it had assigned the funds. The Fourth Circuit disagreed:
Although Logan agreed to deposit the funds received from CDP (by way of the Committee) in the United Jersey account for ultimate transfer to Security Pacific, Logan used the funds for its own purpose to reduce its debt to Security Pacific. The fact that Logan could not have used the funds for other purposes does not affect this critical factor.
Id. at 29. The partnerships in the present case are, in all material respects, indistinguishable from Logan. For different reasons, neither Logan nor the partnerships had any practical control over the funds transferred through them. Logan had assigned the funds to Security Pacific. Just as the transfers from Granada to the partnerships altered the debts that existed between Granada and these entities, Logan's receipt of funds from the debtor altered the debt that existed between the debtor and Logan. Just as the partnerships used the funds for their own purposesto reduce their debts to Key BankLogan used the funds transferred through it to reduce its debt to Security Pacific.
The court in In re Colombian Coffee Co., 64 B.R. 585, also found it relevant that the alleged conduit was benefitted by the preference transfer.[6] In Metsch the debtor transferred a preference payment to the defendant bank, which was controlled by the debtor. The defendant transferred the payment to a second bank for the benefit of a corporation related to the debtor. The court refused to allow the debtor's trustee to recover the preference from the defendant. The court found that the bank was a conduit.
Although it may be argued that the decision can be based upon the control that the debtor exercised over the defendant bank, the court did not emphasize the control issue.[7] Rather the court found that the "defendant neither received nor retained any benefit from the $1.6 million transfer which is in question here other than its nominal banking charges." Id. at 586. The benefit received by the partnerships in the form of reduced debts to Key Bank is an important factor which distinguishes the present case from In re Colombian Coffee Co.
Several courts have indicated that the existence of a debtor-creditor relationship between the debtor and the alleged conduit is a relevant factor. In re Columbia Data Prod., Inc., 892 F.2d at 28 ("When a creditor receives money from its debtor to pay a debt, the creditor is not a mere conduit."); Bonded Fin. Serv. v. European Am. Bank, 838 F.2d at 893 (The alleged conduit "received nothing from [the debtor] that it could call its own; the [alleged conduit] was not [the debtor's] creditor. . . ."); In re *310 Chase & Sanborn, Corp., 848 F.2d at 1201 (Although the alleged conduit had technically become the debtor's creditor, "no real debtor-creditor relationship" existed.). In the present case, it is undisputed that a debtor-creditor relationship existed between Granada and the partnerships. This fact, among others, makes it difficult to view the partnerships as conduits.
A careful examination of the above cited and other related cases leads to the conclusion that the partnerships were initial transferees rather than conduits between Granada and Key Bank. The fact that many of the cases discussed above involve defensive rather than offensive uses of the conduit theory is of no consequence. An entity's status as a conduit should not change depending upon who asserts the theory. In fact, cases that assert the conduit theory defensively provide a useful perspective from which to view the present case. If the trustee had attempted to recover the preference from the partnerships rather than from Key Bank, any attempt by the partnerships to defend based on the conduit theory would be unavailing. Had that occurred, this court is of the opinion that the partnerships would be unsuccessful in arguing that they were innocent financial intermediaries or couriers against which a preference could not be recovered. For these same reasons the trustee should not be permitted to ignore the partnerships in his attempt to reach Key Bank.
One final factor persuades the court to reject the trustee's position: The trustee still has a way of reaching Key Bank under § 550. Section 550(a) indicates that the trustee is not limited to recovering the preference from the initial transferee. The trustee may recover from "any immediate or mediate transferee of such initial transferee" unless a subsequent transferee can demonstrate a defense under § 550(b). This means that Key Bank must disgorge the preference unless it can defend under § 550(b). This possibility eliminates the need to expand the conduit concept.
This court believes that the correct result will be reached if Key Bank is treated as a subsequent transferee. The bank should be required to account for the preference if it does not qualify for subsection (b) protection.
Accordingly, the bankruptcy court's order is HEREBY REVERSED AND REMANDED for a determination of whether the trustee may recover the preference payments from Key Bank as a subsequent transferee.
NOTES
[1] The bankruptcy court stated:
In particular, the partnerships' checkbooks were kept at Granada's place of business. All of the checks that were generated by the partnerships to CSB had Granada's address printed on them and were signed by its employees. Moreover, the partnerships' bank statements were sent to Granada's place of business, and its employees prepared the partnerships' financial reports, and maintained their checking account records and general ledgers. (citations omitted)
Id. at 706.
[2] Section 550(a) states:
Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from
(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or
(2) any immediate or mediate transferee of such initial transferee.
Id.
[3] Subsection (b) states:
The trustee may not recover under section (a)(2) of this section from
(1) a transferee that takes for value, including satisfaction or securing of a present of antecedent debt, in good faith, and without knowledge of the voidability of the transfer avoided; or
(2) any immediate or mediate good faith transferee of such transferee.
11 U.S.C.A. § 550(b) (West 1979).
[4] This court agrees with the bankruptcy court in In re Kaiser Steel Corp., 105 B.R. 639, 647 n. 11 (Bankr.D.Colo.1989), rev'd, 110 B.R. 514 (D.Colo.1989), aff'd on other grounds, Kaiser Steel Corp. v. Charles Schwab & Co., Inc., 913 F.2d 846 (10th Cir.1990), that good faith analysis should be restricted to § 550(b).
[5] A nominal benefit such as banking fees are normally ignored for purposes of this inquiry. Metsch v. City Nat'l Bank (In re Colombian Coffee Co.), 64 B.R. 585 (Bankr.S.D.Fla.1986). On the other hand, the trustee may be permitted to recover the fees retained, Commercial Recovery, Inc. v. Mill Street, Inc. (In re Mill Street, Inc.), 96 B.R. 268 (Bankr. 9th Cir.1989).
[6] In re Colombian Coffee Co. is factually similar to the present case in that the alleged conduit was controlled by the debtor rather than by the creditor.
[7] In fact, it appears that the court ignored the control issue entirely. The court stated that the bank's "role in this transfer was indistinguishable from that of the defendant Alabama bank in Metsch v. First Alabama Bank of Mobile (Colombian Coffee Co., Inc.) 59 B.R. 643 (Bkrtcy. S.D.Fla.1986)." In the Alabama case the debtor did not control the defendant bank. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1512565/ | 544 S.W.2d 200 (1976)
J. F. DICKSON, Appellant,
v.
R. P. DICKSON, Appellee.
No. 12432.
Court of Civil Appeals of Texas, Austin.
December 1, 1976.
Rehearing Denied December 22, 1976.
*201 Kirk Patterson, Mitchell & Stewart, San Antonio, for appellant.
Sander W. Shapiro, Barry K. Bishop, Clark, Thomas, Winters & Shapiro, Roy Q. Minton, John L. Foster, Jones, Blakeslee, Minton, Burton & Fitzgerald, Inc., Austin, for appellee.
SHANNON, Justice.
Appellee, Roberta Purvis Dickson, filed suit for divorce against appellant, Fagan Dickson, in the district court of Travis County. The parties also sought a disposition of their estate. After trial to a jury, judgment was entered granting the divorce and dividing the property. We will affirm that judgment.
Some aspects of this case have been considered previously by this Court in an appeal from certain temporary orders of the district court. Dickson v. Dickson, 516 S.W.2d 28 (Tex.Civ.App.1974, no writ).
The parties were married in December, 1947, and they separated in March, 1974. Prior to December, 1947, appellee was the widow of an early Austin entrepreneur, Malcolm Reed. She and Reed had two children, Roberta and Lucy. Appellant also had been married previous to 1947, and he had one child, James Dickson. Appellant and appellee had no children by their marriage.
At time of her second marriage appellee was a woman of wealth and property. The primary source of her wealth was the income from two trusts created by her first husband. Reed Trust Number One was an inter vivos trust. Reed Trust Number Two was a testamentary trust. Appellee was the life beneficiary of the income from Reed Trust Number Two with the remainder interest in the Reed children, Roberta and Lucy. The income from Reed Trust Number Two consisted primarily of oil royalties.
When he married appellee, Fagan Dickson was a man of slender means. He was employed as First Assistant in the Attorney General's office with an annual salary of $7,500. He had no other income or property of any significance.
Early in their marriage the parties obtained a written opinion from a tax attorney pertaining to the legal nature of income from the Reed Trusts. That opinion attempted to summarize the law with respect to what was separate property and what was community property. The opinion also suggested how books could be set up to account for each character of property.
In response to the tax opinion, appellant caused to be created a bookkeeping system which he caused to be maintained throughout the marriage. Appellant caused three sets of books to be set up, one for each estate: appellee's separate, appellant's separate and their community. All income was considered to be community income, except for oil royalties. Oil royalties were treated as the separate property of the estate owning the interest. Most of the income enjoyed by the parties resulted from distributions from Reed Trust Number Two. That income was treated as appellee's separate property to the extent it represented oil royalty and as community property to the extent it represented other classes of income.
*202 When an asset belonging to a particular estate was sold, the proceeds from that sale were considered to belong to that estate and were so treated. Any property acquired from the proceeds of the sale was likewise considered and treated by appellant as an asset of that estate. Also, appellant followed the practice of placing real property, which was purchased with appellee's separate funds, in appellee's name as her sole and separate property. During the twenty-seven years of marriage the income from Reed Trust Number Two increased greatly, as did the value of real estate purchased with that income.
In keeping with the tax opinion, the parties opened an account in the Capital National Bank styled the "RPD Bank Account" and accounts in the American National Bank and the Capital National Bank styled the "Mr. and Mrs. Account." Pursuant to the opinion they deposited certain income from Reed Trust Number Two into the "RPD" account and certain income from Reed Trusts Numbers One and Two into the "Mr. and Mrs." account. The parties also opened a bank account termed the "FD" account.
It is fair to conclude that shortly after marriage to appellee Dickson virtually retired from the practice of law. His energies were directed principally toward the handling of his wife's fortune.
Dickson acted as an attorney and advisor to appellee in all transactions involving either her separate account or the community account. He handled all business transactions and arranged for loans. Appellee relied upon him in connection with the execution of all legal instruments, and he tended to the details of delivering and depositing monies in the banks. Appellee relied upon Dickson to maintain the segregation of community and separate funds. Appellant and appellee treated and considered the "RPD" account as appellee's separate property.
In his trial pleading appellant contended that community funds had been used for the benefit of appellee's separate estate, and, as a result, the community estate should be reimbursed from appellee's separate estate. Appellant also claimed that a large part of the wealth which he and Mrs. Dickson had always regarded as her separate property was, in fact, community property. Appellant contended further that appellee's separate property and the community property had been so commingled that segregation of those funds was impractical or impossible. Finally, appellant pleaded that Mrs. Dickson and her attorneys "conspired" to dissolve the marriage and to destroy his community interest in certain shares of stock and real estate.
The court's charge contained eighteen special issues. The jury answered that Dickson undertook to establish, maintain, manage, and supervise a bookkeeping and accounting system for the parties during their marriage to keep segregated the parties' separate and community estates, and that Mrs. Dickson relied upon him to do so. The parties relied upon and undertook to follow the legal opinion prepared by the tax attorney for the purpose of keeping segregated the parties' separate and community estates. During their marriage the parties treated and considered the funds deposited from Reed Trust Number Two into the "RPD" bank account to be the separate property of Mrs. Dickson. The parties, throughout their marriage, treated and considered the funds deposited to the "FD" account from any and all sources to be the separate property of Fagan Dickson. The funds deposited from Reed Trusts Numbers One and Two into the "Mr. and Mrs." account were treated as and considered to be the community property of the parties.
In response to several special issues the jury also answered that nineteen tracts of land, five notes receivable, shares of stock in seven corporations, and municipal bonds with the face value of $718,498 were purchased solely with separate funds or property of Mrs. Dickson.
The district court entered judgment dissolving the marriage and dividing the property. Because the district court's division of the property mainly followed the parties' books and records, appellee received the *203 great bulk of the property, whereas appellant, by his estimate, received property in the approximate value of $863,133.03. The court departed in only one respect from the books and records and that departure concerned the division of common stock standing in appellant's name in Dickson Properties, Inc., a family corporation.
Although appellant's brief contains fourteen points of error, appellant does not attack any answer of the jury to the special issues. By two points of error appellant says that the district court erred in permitting Sander Shapiro and Frank Ikard, attorneys in the firm of Clark, Thomas, Winters and Shapiro, to testify because those attorneys had allegedly represented him at a time just previous to the divorce proceedings. The Clark firm was one firm of attorneys representing Mrs. Dickson during trial. Appellant claims that Shapiro and Ikard represented him, that they obtained confidential information from him in such representation, and that such information was disclosed by them contrary to appellant's interests.
Shapiro and Ikard very likely represented Mrs. Dickson, not appellant. Moreover, it was probably necessary for appellee to call Shapiro and Ikard as witnesses to meet appellant's effort to prove a conspiracy between those attorneys and appellee. However, we will overrule appellant's points of error upon the ground that he waived any complaints he may have had as to the claimed impropriety of attorneys for appellee. There was waiver since Shapiro and Ikard were permitted to testify without objection, Hill v. Baylor, 23 Tex. 261 (1859); Barrera v. Duval County Ranch Company, 135 S.W.2d 518 (Tex.Civ.App.1939, writ ref'd), and since appellant waited until the trial was well underway, by some twenty-three days, before he filed his motions to disqualify those attorneys and to strike their testimony. Turner v. Turner, 385 S.W.2d 230 (Tex.1964).
Appellant complains by points of error three, six, eight, and nine that the district court erred in refusing to submit four requested special issues and three requested instructions. Appellant requested a great cloud of special issues and instructions, two hundred-seventeen in number, which fill one bulky volume of the transcript. Many of the requests were inappropriate and legally immaterial. For example, two requested issues inquired of the jury whether or not it "would be equitable" for property to be divided in a certain manner. Another requested issue inquired whether appellee's treatment of appellant rendered further living together insupportable. This request was made even though the dissolution of the marriage was not even at issue. Another requested issue inquired as to the value of a filing cabinet. Other special issues inquired into the names of certain bank accounts of the parties.
Appellant's four requested special issues and three requested instructions were enveloped in a flock of requests in a manner calculated to conceal and with the probable purpose of having them overlooked by the district court. See Federal Underwriters Exchange v. Walker, 134 S.W.2d 388, 395 (Tex.Civ.App.1939, writ dism'd). By so obscuring his requested issues and instructions, appellant waived whatever complaints he may have had concerning the refusal of the court to submit the requested issues and instructions. Tex.R.Civ.P. 274, Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App.1971, writ ref'd n. r. e.); Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.1974, writ ref'd n. r. e.). See also Monsanto Co. v. Milam, 494 S.W.2d 534 (Tex.1973), for a discussion of the purpose and requirements of Rule 274 in connection with objections to the charge.
By four points of error appellant attacks that part of the judgment awarding appellee the shares of stock of Dickson Properties, Inc., which stood in appellant's name. The award of that stock to appellee is the judgment's only departure from the character of property assigned by the parties' books and records.
The issue underlying appellant's points of error is whether the trial court abused its discretion in awarding the stock *204 to appellee. With respect to the power of the divorce court to divide the property of the parties, Tex.Family Code Ann. § 3.63 (1975) provides that the court shall divide the property "... in a manner that the court deems just and right, having due regard for the rights of each party .." The well established rule is that the court is not required to divide the property equally between the parties. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). It is presumed that the divorce court properly exercised its discretion in the division of the property, and its judgment will not be reversed unless there is a clear abuse of discretion. Bell v. Bell, 513 S.W.2d 20 (Tex. 1974).
The basis for appellant's asserted ownership of the stock is as follows. Appellee purchased four tracts of land, about three hundred forty-two acres, near Austin which the parties named "Faro Farms." Appellee took the deeds in her name and those deeds contained recitations that the respective tracts were appellee's separate property. Appellant testified that appellee paid for the land with her separate funds and that he considered the land to be her separate property.
In 1958, appellant asked appellee if she would allow him to have half-ownership in Faro Farms. Appellee testified that on that date appellant was in a "very emotional state" and was "pressing" her "to divide" the land. Appellee finally agreed to do so if appellant would give her a note for one-half of the 1952 purchase price of the lands, and if appellant agreed in writing to return his interest in Faro Farms to her in the event they ever divorced, and if he agreed to devise his interest in the land in equal shares to his son and to appellee's daughters. Appellant gave appellee a note for $78,000 and prepared a partition instrument reciting that the parties were partitioning community property. It is of some moment that after the transaction, but still in 1958, appellant filed a financial statement showing that his interest alone in Faro Farms was worth $254,353.13.
The 1958 Faro Farms transaction was the origin of appellant's asserted ownership of stock in Dickson Properties, Inc., inasmuch as the corporate records show that appellant was issued 4,487 shares of stock by reason of his transfer to the corporation of the one-half interest in Faro Farms.
Though not important to the resolution of the problem, it should be noted that appellant repudiated one of the "conditions" upon which the 1958 transfer was grounded. In 1971, when appellee was critically ill, appellant drafted another will by the apparent terms of which his son would have taken his one-half interest in Faro Farms to the exclusion of the Reed girls.
In any event, and even if Dickson's new will did not violate appellee's supposed "condition," the judgment awarding the corporate stock to Mrs. Dickson was "just and right" in view of the circumstances. One circumstance, other than those surrounding the original transfer of the interest in Faro Farms to appellant, is that much of appellee's separate property was consumed in supporting the family. This is so since Dickson stopped short his practice of law soon after his marriage to appellee. Another such circumstance is that the community estate profited greatly from transactions funded entirely by appellee's separate property, all of which inured ultimately to appellant's benefit. It is a fair conclusion, we think, that nearly all of the community estate, as well as appellant's so-called "separate" property had its origin in appellee's separate property or "special" community property.
Appellant complains by two points of error that the court erred in awarding appellee certain property since that property had been purchased with commingled funds.
For nearly twenty-seven years Dickson was the gentleman on whom appellee built an absolute trust. He acted as her attorney and advisor in all transactions involving either her separate account or the community account. He carried on the business transactions and arranged for loans. Appellee relied upon Dickson in connection with the execution of any and all legal *205 instruments and he handled the details of delivering and depositing money in banks. Appellee also depended upon Dickson to maintain the segregation of community and separate funds. Whatever commingling occurred from the placing of borrowed funds into the "RPD" account and from the deposition into that account of unidentified "oil payments" was strictly the result of Dickson's doing.
In the exercise of the management and control over appellee's separate property and the community estate, Dickson acted as a trustee for the benefit of appellee. It is axiomatic that a trustee cannot benefit from his own error or wrongdoing. Appellant's points of error will be overruled because the commingling, if any, of the "RPD" account was done by appellant, as trustee or otherwise, and he should not, and will not, be permitted to benefit therefrom. Giesler v. Giesler, 309 S.W.2d 949 (Tex.Civ.App.1958, no writ), W. deFuniak & M. Vaughn, Principles of Community Property, 125 (2nd Ed. 1971).
The judgment is affirmed.
Affirmed.
O'QUINN, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1720860/ | 434 So.2d 383 (1983)
Henry BRIDGEWATER
v.
STATE of Louisiana Through the DEPARTMENT OF CORRECTIONS.
No. 83-C-0072.
Supreme Court of Louisiana.
June 27, 1983.
Gregory F. Gambel, Cummings & Gambel, New Orleans, for applicant.
William J. Guste, Jr., Atty. Gen., Houston T. Penn, J. Marvin Montgomery, Asst. Atty. Gen., for respondent.
CALOGERO, Justice.
Plaintiff, Henry Bridgewater, an inmate at the Louisiana State Penitentiary at Angola filed suit against the State of Louisiana through the Department of Corrections, seeking damages for injuries he sustained at the penitentiary. Following a trial before a commissioner of the Nineteenth Judicial District, the district court rendered judgment for the plaintiff in the sum of $5,000.00. Defendant appealed. The court *384 of appeal, 422 So.2d 1214, reversed, upon finding plaintiff contributorily negligent. We granted plaintiff's application for writs.
Plaintiff was a porter responsible for janitorial duties at the prison license plate manufacturing plant. On Sunday, February 18, 1973, plaintiff was ordered by a Department of Corrections employee, one T. Jones, to use the sheet metal shearing machine to cut cardboard backing for use in the shipment of finished license plates.[1] Plaintiff protested, contending that operating the shearer was not part of his job. He did nonetheless do as he was told. During the cutting process the cardboard became lodged in the machine. As plaintiff leaned over the shearer in order to unjam the cardboard with his left hand, he accidentally struck a metal bar, the machine's operating control, which was located near his feet at the front and beneath the machine a few inches off the ground. That triggered the switch and activated the machine. The blade dropped and amputated two fingers at the knuckle on plaintiff's hand.
It is well established that an employer has an obligation to provide his employees with a working place and conditions which are reasonably safe considering the nature of the work. La.R.S. 23:13; Lytell v. Hushfiled, 408 So.2d 1344 (La.1982); Walker v. Graham, 343 So.2d 1171 (La. App. 3rd Cir.), writ refused 346 So.2d 213-14 (La.1977); Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir.1970). The Department of Corrections owes prison inmates the duty of providing equipment and machinery which is safe for the tasks the inmates are required to perform. Reed v. State Through the Department of Corrections, 351 So.2d 788 (La.App. 1st Cir.1977).
We agree with the lower courts in their finding the Department of Corrections negligent. As the court of appeal found, the shearer was designed to be operated with a finger guard which would have prevented the injury which plaintiff suffered. According to the deposition testimony of Mr. Bob Joyce, a field service representative of the machine's manufacturer from 1955 to 1967, the machine had had the finger guard attached to it originally. This was evident, he urged, from the fact that the machine had holes not in use, placed in the shearer upon its manufacture for the sole purpose of attaching the safety device. At the prison no one could remember the use of a finger guard on the machine. It had evidently been removed. The safety device had been removed and had never been replaced.[2] Also plaintiff's operation of the dangerous machine was not under the supervision of a prison official. If the guard had not been removed or had it been replaced, the accidental injury could not have occurred. The accident was reasonably foreseeable since inmates were using the machine, unusually dangerous because of the absence of the safety device. The risk involved was within the scope of the duty owed by the defendant to the inmates. There existed an ease of association between the risk presented by defendant's actions under the overall circumstances and plaintiff's resulting injuries. See Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (La.1972).
We disagree, however, with the court of appeal's finding that plaintiff was contributorily negligent and that such contributory negligence was a proximate cause of his injuries. Contributory negligence is defined as plaintiff's conduct which falls below the standard of care to which he should perform for his own protection. The standard is determined by reasonableness of behavior under the circumstances. The party relying upon the contributory negligence defense has the burden of proving it. *385 Smolinski v. Taulli, 276 So.2d 286 (La.1973). See also Hall v. Hartford Accident and Indemnity Company, 278 So.2d 795 (La. App. 4th Cir.), writ refused 281 So.2d 753 (La.1973). Contributory negligence is a matter of fact to be determined in light of the circumstances of each case. Soileau v. South Central Bell Telephone Company, 406 So.2d 182 (La.1981). Contributory negligence is never presumed; such negligence on the part of the plaintiff must be proved as any other fact by a preponderance of the evidence. Tirante v. Gulf States Utilities Company, 412 So.2d 128 (La.App. 1st Cir.), writ denied 414 So.2d 389 (La.1982). See also McInnis v. Fireman's Fund Insurance Company, 322 So.2d 155 (La.1975). In the case of an inmate plaintiff, the State has the burden of proving that the prisoner had failed to exercise care commensurate with the hazard he faced. Lee v. State Through the Department of Institutions, 294 So.2d 553 (La.App. 1st Cir.1974). We find that the State did not carry its burden in this case.
Louisiana courts have acknowledged that an employee is not entirely free to avoid known risks; he cannot simply decide not to do the work without perhaps subjecting himself to loss of his job. Chaney, supra. The standard for contributory negligence on the part of an employee was enunciated in Miller v. Employers Liability Insurance Company of Wisconsin, 349 So.2d 1353, 1362 (La.App. 2nd Cir.), writ denied 352 So.2d 235 (La.1977):
Emerging as criteria for determining an employee's contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee's situation; (3) the degree to which the employee's conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.
"(T)he standard of care imposed on the workman is less stringent than in ordinary cases where contributory negligence is at issue because the employee at times must involve himself in known hazardous endeavors in order to retain his employment." Martinez v. U.S. Fidelity and Guaranty, 412 So.2d 109, 112 (La.App. 4th Cir.), amended and aff'd 423 So.2d 1088 (La.1982). The utilization of this less stringent standard is seen in cases such as Martinez. In that case this Court held that a plaintiff worker, who had been informed on several occasions of the dangers presented in her work area by electric cords extending across walkways, was not contributorily negligent in tripping over one of the cords.
An inmate, in particular, is not in a position to refuse to perform a job known to be dangerous. See Stilley v. State, 376 So.2d 1007 (La.App. 1st Cir.1979), writ refused 378 So.2d 1389 (La.1980). An inmate has far less freedom of choice; he is subject to disciplinary measures if he refuses to do what he is told. Plaintiff was told to use the machine with the finger guard removed. He used the shearer, which lacked the safety device that would have prevented the unfortunate accident, to cut cardboard when the machine was designed to cut only metal. He did as he was told. Plaintiff did not ignore any verbal or posted warnings not to place his hands under the blade of the machine. He used the dangerous machine to do the job that he was ordered to do. When the cardboard became lodged, Bridgewater tried to remedy the situation in the only way he thought possible. He used his hands to remove the tangled pieces of cardboard. The commissioner, who personally examined the machine at the penitentiary, stated in his reasons that the risk of such an accident "could easily escape the attention of an untrained person." Plaintiff's routine job did not involve the use of the machine. According to Bridgewater's testimony, only because it was a Sunday and no one else was around did the task fall to plaintiff who was ordinarily the janitor. He was certainly not as familiar with the machine and the placement of the activating bar as those inmates who regularly ran the shearer. Under the evidence presented in this case, there is no *386 clear indication of negligence on the part of plaintiff.[3]
Unlike the plaintiff in Parker v. State, 353 So.2d 333 (La.App. 1st Cir.1977), writ denied 354 So.2d 1375 (La.1978), Bridgewater did not voluntarily and on his own initiative decide to use the shearer. He was ordered to use the metal cutting machine to cut cardboard. He was not contributorily negligent for following orders. Unlike the plaintiff in Boyd v. Department of Corrections, 292 So.2d 793 (La.App. 1st Cir.1974), Bridgewater did not take any chance in the operation of the machine. Unlike the plaintiff in Veal v. State, Department of Institutions, 232 So.2d 910 (La.App. 1st Cir.1970), Bridgewater was not "playing a game" with the shearer. He accidentally tripped the trigger bar which was at his feet and obscured from his view as he leaned over to pull out the lodged piece of cardboard.
We therefore find that plaintiff was not contributorily negligent. Accordingly, we reverse the judgment of the court of appeal and reinstate the district court judgment awarding plaintiff $5,000.00.
Decree
For the foregoing reasons, the ruling of the court of appeal is reversed and the district court judgment is reinstated.
COURT OF APPEAL JUDGMENT REVERSED; DISTRICT COURT JUDGMENT REINSTATED.
NOTES
[1] In his report Commissioner Bergeron described the operation of the machine as follows:
The shears are a large machine containing a stationary blade or cutting edge and a second moving blade which is activated by a large bar beneath the machine. Stepping on the bar causes the cutting blade to drop, cut whatever is beneath it and return to its position.
[2] In his deposition, Mr. Joyce, the manufacturer's representative, stated that finger guards for that type of machine were always readily available.
[3] Since this Court finds no contributory negligence, we pretermit discussion of the other arguments raised by plaintiff in brief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2136255/ | 978 F.Supp. 673 (1997)
In re COMBUSTION, INC.
Civil Action No. 94MDL4000.
United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
September 18, 1997.
HAIK, District Judge.
RULING
On August 15 and 18, 19 and 22, 1997, this Court conducted a hearing ("Hearing") that represented the culmination of more than five month's work by the Special Master and his staff, the Plaintiff Steering Committee (PSC), and this Court toward the ultimate goal of disbursing funds to the Claimants. The purpose of the Hearing was to consider the recommendations of the Special Master and the Court-appointed-disbursing-agent, ("CADA"), regarding the allocation process and Claimant allocation schedule, to consider individual objections, and in general, to clear the last major hurdle in the long-awaited disbursement of funds.
For the reasons stated below, the Court adopts the Report of the Special Master RE: Combustion Litigation Claims Allocation Methodology of June 26, 1997 as amended July 3, 1997, ("Report I"), the Special Master's Report Regarding Prehearing Conferences, ("Report II"), and the amended Claimant allocation schedule submitted under seal as CADA # 3.
Each Claimant who elected to maintain his objection after consideration by the Special Master and then by the Court at the Hearing was issued an individual Final Judgment, entered by the Clerk of Court at that time. By the Final Judgment issued in conjunction with this Ruling, the Court dismisses all objections by Claimants who timely filed but failed to appear at both the Special Master's conferences and before the Court at the Hearing, (exhibit PSC-70), by claimants who filed timely objections and appeared before the Court but did not show just cause for failing to follow the Special Master's protocol and failing to appear at the Special Master's conferences, (exhibit PSC-71), by Claimants who maintained their objections after the Special Master's conferences but who failed to appear at the Hearing, (exhibit PSC-72), and by Claimants who failed to timely object but who appeared at the Hearing and did not show just cause for such derelict behavior, (PSC-69). Finally, the Court dismisses all other claims asserted by Class members who appeared at the Hearing.
Background
The partial distribution process began in March of this year when the Court ordered the Special Master to write and submit a report "as to the nature and amount of any and all maximum reserves to be established in order to determine the amount of the Claimants' Fund available for partial distribution." The Court also ordered that notice be sent to the Claimants regarding the report and that a hearing be set for April 18, 1997 to consider the recommendations of the Special Master. See Order for Implementation of Partial Distribution Process, doc. # 7072, March 7, 1997; Important Notice of Hearing, doc. # 7073, March 7, 1997.
After the April 18, 1997 evidentiary hearing, the Court issued extensive reasons adopting the Special Master's report and ordering *674 him to proceed with his work toward disbursement. See Ruling, doc. # 7148, June 4, 1997; Final Judgment, doc. # 7049, June 4, 1997.
Accordingly, the Special Master enlisted a staff of attorneys and a medical expert board certified in pathology and internal medicine to assist evaluating all the reports of the medical and toxological experts filed in this case, attachment 1, and in reviewing each Claimant's file, including all medical records and property claims. Only after an exhaustive review of the information available to him did the Special Master recommend to the Court a methodology upon which individual allocations were based and a schedule of the individual allocation for each Claimant. See Report I. Report I was amended by Motion of July 3, 1997 because of clerical error, but the amendment did not affect the allocation schedule. The Court gave preliminarily approval to Report I by Order, June 25, 1997, (filed June 26, 1997). The allocation schedule was filed under seal.
Methodology
The cornerstones of the Special Master's methodology were exposure and medical problems. Using expert reports and the state court's geographical class definition, the Special Master determined that the site had no impact on people living beyond 3 miles from a center point lying between two portions of the site. Thus, personal injury recovery was limited exclusively to Claimants who lived, worked, or attended school within the 3 mile radius. Enhancement factors were proximity, duration, and degree of lethal activity at the site during the Claimant's time within the creditable radius. Once a Claimant's exposure points were calculated, each point was valued at $3.00, with the product yielding a total exposure award.
To this award was added the compensation for medical problems determined by the medical expert to be associated with the site. The expert evaluated and classified each Claimant's medical problem by studying the symptoms, the age of the Claimant, and the date of diagnosis. Enhancing factors included the nature and severity of the condition, the probability of a causal link to the site. the relationship of the medical claims to each other, and the effect on the life of the Claimant. Categories A, B, C, and D classified diseases or clinical courses according to severity from "unusual or unexpected major diseases and/or clinical courses" to "chronic effects to include birth defects and deformities." Report II, p. 11-13. Other categories were used simply as a formality, but only these four classifications earned dollar credits.
The maximum awards for these four categories ranged from $1,000,000 to $15,000. After it was determined that a claimant belonged in category A, for example, that Claimant's maximum possible medical award was tapered to fit his actual circumstance.
First, the Special Master set up four "rejection of medical claim" categories. Medical claims were not allowed for Claimants who were diagnosed prior to January 1, 1968, or who moved from the site prior to January 1, 1968, or who were diagnosed after moving outside the 3 mile radius.
Causation was factored into the medical award for the claims that survived the rejection threshold. The actual medical award was the product of the maximum dollar amount for that Claimant's illness category and the ratio of that Claimant's actual exposure points to his maximum possible exposure points calculated as if he had lived at the site throughout all relevant time beginning with his date of birth. The sum of the medical award and the exposure point award was each Claimant's personal injury allocation.
Minimum compensation awards ranging from $250 $20,000 were allotted to Claimants whose exposure points fell into one of six categories but whose corresponding total allocation was lower than the corresponding minimum amount set by the Special Master. See Report I, at p. "substituted 10". As a baseline rule, an allocation of $250 was allotted to the Claimants who lived outside the three mile radius and never attended school or worked within the radius and who had no other creditable exposure or property damage but who participated in the Class action as instructed by the many newsletters and legal notices.
*675 Property damage was determined in increments of one-quarter mile from the site up to one mile from the site. The dollar amount was based on the Assessor's rolls for Claimants who owned the property when the suit was filed in July 1986. Reimbursement ranged from 100% to 25% of "actual value," calculated to be greater that the assessed value by the factor of ten.
Other categories were compensated. Business losses were considered on a case by case basis because of the relatively few claims of this nature. Compensation to class representatives, bellwether plaintiffs, and other claimants who participated in depositions, medical examinations, and generally contributed to the development of the case was awarded because of the extra time and effort and work of these Claimants during the course of the law suit.
In addition to individual awards to the Claimants, the Special Master also recommended establishing a medical monitoring fund for annual medical check-ups, including blood work, for five years free of charge to the Class members. He recommended $1.5 million for this service. This service had been requested by claimants in letters to the Court in conjunction with the April 18, 1997 hearing. Finally, the Special Master reported the intervention by the State of Louisiana asserting liens for recovery of medical and related expenses incurred by the State hospital facilities.
Protocol
On June 26, 1997, the Court gave preliminary approval to Report I and allocation schedule and ordered a hearing pursuant to Federal Rule of Civil Procedure, (FRCP), 23(e). See Report I; Order, doc. # 7180, June 26, 1997; Important Notice of Hearing, doc. # 7178, June 26, 1997. The individual allocation letters and the Important Notice of Hearing were mailed to each Claimant beginning June 26, 1997. Incorporated in the Important Notice of Hearing was the procedure that dissatisfied Claimants were ordered to follow to object to their allocations. The notice also included the methodology to be used by the Special Master and his staff to review each objection. Important Notice of Hearing, at p. 3-5. The Report of the Special Master was made available for inspection at the Special Master's office and the Clerk of Court in Livingston Parish, and for inspection and duplication at the Joint Document Depository.
Each objector was instructed to file by hand, U.S. mail, or fax his written objection by midnight July 21, 1997, an equitable extension to the FRCP 53(d)(2) ten-day deadline. Objectors were expressly instructed that they "must respond [to any communication from the Special Master] as directed ..." regarding their objection. And "[if the Claimant fails] to comply with any of the above requirements, [the Claimant's] objection will not be considered and will be overruled by the Court." Important Notice of Hearing, at p. 4, June 26, 1997.
Approximately 1600 objections were received timely. Each objector's file was studied and re-evaluated. The Special Master scheduled individual appointments for every objector and notified each one of the appointment in writing and by phone. Each objector was encouraged to submit additional records in support of his objection even though the Court-ordered deadline for supplementing records was November 15, 1996. See Order, October 15, 1996, (attachment 2).
For eleven days, beginning July 29 through August 12, 1997, the Special Master and his staff held individual conferences with each objector who appeared in person, beginning at 8:00 a.m. and continuing until 9:00 or 10:00 p.m., in an effort to satisfy each Claimant's concerns. The court-appointed medical expert was available at all times, either by phone and fax or personally, to evaluate additional medical records submitted by the objectors. All parties were placed under oath, and transcriptions of all conferences with the Special Master were filed into the record under seal at the Hearing.
More than $1 million dollars in adjustments were made as a result of the conferences. Claimants who were satisfied with the adjustments signed written statements withdrawing their objections. Claimants who maintained their objections were scheduled to appear at the Hearing and encouraged *676 to bring additional documentation to support their positions.
On August 14, the Special Master presented to the Court the Report II along with the consultation reports of the Court-appointed physician. The Special Master also presented an amended allocation schedule incorporating the adjustments resulting from the prehearing conferences.
Court Hearing
Claimant's who maintained their objections, including several who received upward adjustments but wished to present their case in Court, appeared at the Hearing. For each objection presented, the Court read and reviewed that objector's complete file, the transcript of his conference with the Special Master, and an additional evaluation of the claimant's medical records provided by the court-appointed physician. The objector was given another opportunity to present to the Court additional evidence not presented to the Special Master.
As each Claimant appeared and after consideration of additional evidence introduced to the Court by the Claimant, the Special Master presented his revised recommendation. The Court then ruled on each objection from the bench. Those objectors who maintained their objections after the ruling by the Court were issued Final Judgments pursuant to FRCP 54(b). See attachments 3-1, 3-2, 3-3, 3-4. The individual Judgments were entered by the Clerk of Court on the dates they were issued.
In addition, Claimants who had not complied with the objection process but appeared at the Hearing and presented to the Court just cause for not complying with the Special Master's protocol were allowed to present their objections to the Special Master or an attorney on his staff and proceed through the same process at that time. The Court was also provided complete files for these claimants. Those Claimants who did not withdraw their objections after meeting with the Special Master and appearing before the Court were issued Final Judgments.
Claimants who failed to show just cause for not following the Special Master's objection protocol were dismissed with prejudice as were persons who appeared but who had not filed proof of claim forms, a matter already concluded by the Court in September 26-29, 1995. (See Written Reasons, February 7, 1996, doc. # 4160, Final Judgment, February 7, 1996, doc. # 4149).
A total of $1.6 million in adjustments was made as a result of this extraordinary effort by the Special Master and his staff and by the Claimants. These adjustments reflect errors in data entry as well as additional credit for new medical records indicating a more serious category of disease than previously shown in the Claimant's file. After considering almost 1,800 objections, the Court issued only sixty-three (63) Final Judgments, less than 4% of the original number filed.
Analysis
A district court shall accept the report of a master unless clearly erroneous. F.R.C.P. 53(e)(2). This Court finds no clear error in either of the reports submitted by the Special Master.
As repeatedly stressed by the Special Master in the conferences and in Court, the thesis of his methodology was fairness and parity to the Class as a whole, "an imperative consideration in a case of this kind." Report of the Special Master RE Combustion Class Action Litigation Claims Allocation Methodology, at p. 2. The Court whole-heartedly agrees and applauds the tireless efforts of the Special Master and his staff for holding firm to the equity touchstone of the distribution model and for taking the time to explain the methodology to every single objector who attended a conference.
The Court now focuses on several key findings made by the Special Master, as these determinations form the cornerstones of the Special Master's methodology. First is his determination that claims recovery should be limited to a radius of 3 miles from the site. This conclusion was based on his knowledge of the case through the tens if not several hundred settlement conferences he conducted, through the exhaustive review he made of the reports of the plaintiffs' and defendants' medical and toxicological experts, *677 and through the extensive consultations he had with the court-appointed physician.
Further, the Court has not received credible evidence to the contrary. The class territory was initially defined to extend to 2.5 miles from the center of the site, though on remand the state court judge included the entire Parish of Livingston. This original effort coupled with the Special Master's experience led him to conclude that the impact of the site beyond 3 miles was de minimis, except possibly the fear and fright of harmful effects from the site. See exhibit DH-33-1, Report of Donald Rosebrook, Ph.D., Re: Scoring System for A location of Plaintiffs' Award (expert for Plaintiffs).
However, in keeping with equitable considerations, the Special Master set a minimum award of $250 for Class member who filed a valid proof of claim but who had no creditable exposure within the 3 mile radius. The purpose of this award was to account for considerations such as inconvenience, fear, fright, and medical conditions of these Claimants.
The Court will not repeat the lengthy analysis on causation set out in the Ruling of June 4, 1997, except to state that establishing a causal link between the chemicals at the site and the various personal injury claims alleged by Class members was the acknowledged Achilles Heel of the Plaintiffs' case. Defendants' experts concluded that harmful exposure, if any, expended only a matter of yards from the site. At least one site worker testified at the August 15 hearing that the extent of his medical problems was a collapsed lung, determined not to be related to chemicals at the site. See Transcript of August 15 hearing, testimony of Mark Bernhard, p. 623. The Court finds no clear error with the 3-mile radius determination or with the $250 minimum award for Claimant's having no other creditable points.
Next, the Special Master credited only residency, employment, and schooling within the three mile radius and did not allow double recovery. Notably omitted were those claims based on time spent hunting, fishing, and otherwise visiting within the creditable radius. The Special Master found that the transient nature of these types of visits created too much variation and uncertainty as to sufficiency of damaging exposure. The Court finds no clear error in this determination.
The Special Master also found that no credit would be given for lost wages or medical expenses. This latter decision was based on the extreme subjectivity and difficulty with proof that chemical exposure caused a missed day of work during the time period from 1968-1994. In addition, almost every Claimant listed medical expenses in the proof of claim form. The Special Master determined that reimbursement of these expenses together with the expense required to verify each claim would itself exhaust the Claimant's fund. Therefore, the decision to eliminate recovery for medical expenses was due to the limited amount of time, personal, and funds available. Furthermore, as stated in the Report I, inclusion of these expenses as a consideration distinct from the exposure point considerations "would skew the allocation in such a way that would be generally unsatisfactory to the large majority of persons involved." Report I, p. 13-14. The Court finds no clear error in this decision.
The remaining findings of the Special Master regarding allocations for property claims, class representative participation and other incentive awards, and business loss appear to be well reasoned in the Report I, and the Court finds no clear error with those findings.
The Special Master's recommendation that $1.5 million be set aside for medical monitoring to Class members free of charge for five years has been requested by Claimants and is wholeheartedly supported by the Court. See Ruling and Final Judgment, June 4, 1997. This service will include annual physical examinations and connected laboratory work.
As reported by the Special Master, the State of Louisiana has intervened in these proceedings, asserting liens for recovery of medical and related expenses incurred by the State through the Department of Health and Hospitals, all State Hospital facilities, and Louisiana medicaid participants. The Special Master reports that the State negotiated *678 a payment of $1.2 million with possible enhancement of up to $300 thousand, at the discretion of the Court, after other expenses and costs are paid. The Court finds no clear error in the Special Master's recommendation to accept this compromise.
Finally, the Special Master set aside a portion of the Claimants' Fund to account for adjustments made during this entire allocation process. From this pool was drawn the funding for the $1.6 million increases in allocations made as a result of the objection process. This safety mechanism is prudent accounting, is fair to the Class as a whole, and the Court finds no clear error in this recommendation.
Conclusion
For the reasons stated above, the Court adopts the Report of the Special Master RE: Combustion Litigation Claims Allocation Methodology of June 26, 1997 as amended July 3, 1997, the Special Master's Report Regarding Prehearing Conferences, and the amended Claimant allocation schedule recommended by the Special Master and submitted by CADA. The Court dismisses all objections by Claimants who timely filed but failed to appear at both the Special Master's conferences and before the Court at the Hearing, by Claimants who filed timely objections and appeared before the Court but did not show just cause for failing to follow the Special Master's protocol and failing to appear at the Special Master's conferences, by Claimants who maintained their objections after the Special Master's conferences but who failed to appear at the Hearing, and by Claimants who failed to timely object but who appeared at the Hearing and did not show just cause for failure to timely object. Finally, the Court dismisses all other claims asserted by Class members who appeared at the Hearing.
Exhibit "A"
EXPERTS
Name Area of Expertise
1) James W. Albers, M.D., Ph.D. Neurology
2) William C. Bailey, M.D. General Medicine/Pulmonary Disease
3) Elissa P. Benedek, M.D. Psychiatry
4) Stanley Berent, Ph.D. Neuropsychology
5) William J. Blot, Ph.D. Statistics/Epidemiology
6) Thomas J. Boll, Ph.D. Gynecology/Oncology
7) Patricia S. Braly, M.D. Epidemiology
8) Patricia Buffler, Ph.D., M.P.H. Epidemiology
9) Harris Busch, M.D., Ph.D. Pharmacology
10) Norman Carnahan Chemical Engineering
11) David Drachmann, M.D. Neurologist
12) Patrick J. Egan, C.R.E.
Paula Claverie Hogan, M.A.I. Real Estate
13) Bruce J. Fisch, M.D. Electrocephalography/Neurology
14) David L. Ford, Ph.D., P.E. Environmental Engineering
15) Harold A. Fuselier, Jr., M.D. Urology
16) David Garabrant, M.D., M.P.H. Epidemiologist
17) Wayne Grip Aerial Photographer
18) Philip S. Guzelian, M.D. Toxicology
19) Gale F. Hoffnagle Air Modeling
20) Dr. Raymond Loehr Superfund Site
21) Charles Nemeroff, M.D., M.P.H. Psychiatry/Behavioral Sciences
22) Philip T. Ninan, M.D. Psychiatry
23) Dr. Edward Beardslee Overton Environmental Engineer
24) Michael Pisani, P.E. Environmental Engineer
25) Wade R. Ragas, Ph.D. Real Estate
26) Neil H. Raskin, M.D. Psychiatry
27) John H. Rodgers, Jr. Biology/Water
28) John E. Salvaggio, M.D. Immunology
*679
29) Peter S. Spencer, Ph.D., F.R.C. Path. Neurologist
30) Peter M. Stonebraker Chemistry
31) Austin J. Sumner, M.D. Neurology
32) Louis Joseph Thibodeaux, Ph.D. Chemical Engineering
33) Daninel K. Winstead, M.D. Psychiatry
34) Donald D. Rosebrook, Ph.D. Environmental Chemistry
35) Larry Bankston General Real Estate Appraiser
36) Dr. Isaiah Warner Environmental Chemistry
37) Dr. John Bolter Neuropsychology
38) Dr. Patricia M. Williams Anatomy/Occupational Toxicology
39) Dr. Richard A. Parent Toxicology
40) Dr. Frank Gardner Hematology and Oncology
41) Karl Dicke, M.D., Ph.D. Hematology and Oncology
42) Stanton Coerr Air Modeling
43) Dr. George Worm Statistician
44) Alan R. Hirsch, M.D., F.A.C.P. Neurology
45) Dr. Norman Lewis Chemical Engineering
46) Lisa A. Morrow, Ph.D. Neurology
47) Christopher M. Ryan, Ph.D. Neurology
48) Marvin Legator, Ph.D. Environmental Toxicology
49) Dr. Ed Ekholm Chemical Engineering
50) Myron A. Mehlman, Ph.D. Toxicology
51) Dr. Kaye Kilburn(Deposition) Environmental Medicine
52) Alex Theriot, Jr. Appraiser
53) Harlee S. Strauss, Ph.D. Risk Assessment
*680
*681
*682
*683
*684
FINAL JUDGMENT
Considering the foregoing Ruling and for oral reasons given by the Court in the course of and at the conclusion of the Hearing;
THE COURT HEREBY ADOPTS the Report of the Special Master Re: Combustion Class Action Litigation Claims Allocation Methodology and amended Schedule of Allocations, (CADA # 3), and the Report of the Special Master Regarding Prehearing Conferences;
IT IS ORDERED, ADJUDGED, AND DECREED that all objections asserted by Claimants who timely filed but failed to appear *685 at both the Special Master's conferences and before the Court at the Hearing, (exhibit PSC-70), by Claimants who filed timely objections and appeared before the Court but did not show just cause for failing to follow the Special Master's protocol and failing to appear at the Special Master's conferences, (exhibit PSC-71), by Claimants who maintained their objections after the Special Master's conferences but who failed to appear at the Hearing, (exhibit PSC-72), and by Claimants who failed to timely object but who appeared at the Hearing and did not show just cause for failure to timely object, (PSC-69), are OVERRULED and DENIED.
IT IS FURTHER ORDERED that all other claims asserted by Class members who appeared at the Hearing are hereby DENIED;
IT IS FURTHER ORDERED that to the extent that the Court has not issued a Final Judgment pursuant to FRCP 54(b) on any motion or application to add or reinstate persons to the group of persons qualified to participate in the allocation of settlement funds, any such motion or application is hereby DENIED, and the identification of class members to receive allocations from the Claimants' Fund is hereby restricted to the persons named in the Revised Schedule of Allocations, CADA # 3, adopted in this Judgment;
IT IS FURTHER ORDERED that the claims of persons not previously dismissed who are included within this Court's definition of the Class and who did not timely exclude themselves from the class action but whose names are not on the Revised Schedule of Allocations, CADA # 3, are hereby DISMISSED WITH PREJUDICE;
IT IS FURTHER ORDERED that any and all distributions from the Claimants' Fund to persons incapacitated under Louisiana law to act for themselves, including minors, interdicts, successions or absentees, are to be preserved for the benefit of such incapacitated persons in bank accounts to be established and maintained pursuant to orders of this Court in the course of the distribution process;
IT IS FURTHER ORDERED that pursuant to the provisions of FRCP 54(b), the Court finds that there is no just reason for delay in enforcement of this judgment and, accordingly, directs the Clerk to enter this Judgment and mail a copy with notice to the Plaintiffs' Steering Committee, as counsel for the Class, and to counsel for all Claimants who are represented by private counsel. The Plaintiffs' Steering Committee is directed to send a copy of this Final Judgment to all Class members who filed objections in response to the Important Notice of Hearing (Distribution) and to file its certificate of compliance accordingly;
IT IS FURTHER ORDERED that the Court shall retain jurisdiction over this action in all respects, including any matters necessary to enforce the terms and conditions of the settlements and allocations approved thus far, and that this retention of jurisdiction shall not affect the finality of this Judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516839/ | Fourth Court of Appeals
San Antonio, Texas
March 16, 2020
No. 04-19-00575-CV
IN THE ESTATE OF CARLOS AGUILAR, DECEASED,
From the County Court at Law No 2, Webb County, Texas
Trial Court No. 2012-PB4-000048-L2
Honorable Victor Villarreal, Judge Presiding
ORDER
Extension of time to file Reporter’s Record is this date NOTED. Time is extended to
April 3, 2020.
_________________________________
Liza A. Rodriguez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 16th day of March, 2020.
___________________________________
MICHAEL A. CRUZ,
Clerk of Court | 01-03-2023 | 03-17-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1467924/ | 320 F. Supp. 154 (1970)
Harold Eugene HUFFMAN, pro se and on behalf of Faye I. Huffman and Donald Lee Boersen, infant, Petitioner,
v.
NEBRASKA BUREAU OF VITAL STATISTICS, Maurice H. Sigler, Warden, Nebraska Penal Complex, Joe Bosler, District Probation Officer, and the State of Nebraska, Respondents.
Civ. No. 1675 L.
United States District Court, D. Nebraska.
November 16, 1970.
*155 MEMORANDUM RE MOTION TO STRIKE OR DISMISS
URBOM, District Judge.
The petitioner Harold Eugene Huffman presently is incarcerated in the Nebraska Penal and Correctional Complex, pursuant to a conviction on April 28, 1969, by the District Court of Hall County, Nebraska. On April 14, 1970, an order of this court permitted the filing of documents without prepayment of costs in accordance with 28 U.S.C. § 1915. On April 27, 1970, the respondents filed a motion to dismiss on the grounds that Rule 11 of the Federal Rules of Civil Procedure had not been complied with and that the application had failed to allege facts upon which relief could be granted.
The matters raised by the pleadings can be adjudicated without the appointment of counsel or the formality of an evidentiary hearing, because resolution of the legal issues disposes of the case.
Both habeas corpus relief and civil rights relief are sought. The term "petition", while technically applicable only to habeas corpus cases, will be used in this memorandum to describe the pleading referable both to the habeas corpus relief and to the civil rights relief requested. In somewhat roving fashion the petition seeks to raise six issues, which will be discussed herein separately, *156 except that the first and second will be jointly treated.
I AND II. CONVICTION AND PROBATION OF FAYE I. HUFFMAN (FAYE I. BOERSEN)
The petition contends that the criminal conviction of Faye I. Huffman, alternatively referred to as Faye I. Boersen, in the District Court of Hamilton County, Nebraska, was the product of an involuntary guilty plea and challenges the validity of that conviction. Additionally, the petition attacks the order of probation relating to Faye I. Huffman which has been interpreted by the probation officer and the District Court of Hamilton County as prohibiting the visitation by Faye I. Huffman of Harold Eugene Huffman while he is imprisoned.
The action is brought in the name of "Harold Eugene Huffman, pro se, and on behalf of Faye I. Huffman and Donald Lee Boersen, infant." Only the name of Harold Eugene Huffman is signed to the petition. One of the requirements of Rule 11 of the Federal Rules of Civil Procedure is that "A party who is not represented by an attorney shall sign his pleading and state his address." No valid reason appears for not requiring that Faye I. Huffman or Faye I. Boersen sign the pleading if she in fact desires to challenge either her conviction or the order of her probation. Undoubtedly, one of the justifications for the quoted provision of Rule 11 is to make certain that the persons who are named as parties are actually in assent to the filing of an action on their behalf. Nothing is indicated in the pleadings to suggest that Harold Eugene Huffman has any standing to contest the conviction or probation order of Faye I. Huffman. Furthermore, the petition does not show that Faye I. Huffman has exhausted her state remedies under the Nebraska Post-Conviction Act, and such exhaustion is a prerequisite to any challenge of a conviction. For all the foregoing reasons, this court does not have jurisdiction to resolve issues of the propriety of the conviction or probation order of Faye I. Huffman or Faye I. Boersen.
III. REMOVAL OF NAME FROM MAILING LIST
It is alleged that the prison warden removed the name of Faye I. Huffman or Faye I. Boersen from Harold Eugene Huffman's approved mailing list, because of a letter from the judge of the District Court of Hall County, Nebraska, which stated that the marriage between Harold Eugene Huffman and Faye I. Huffman was not recognized by the State of Nebraska. It further is claimed that the warden has requested that Faye I. Huffman terminate correspondence with Harold Eugene Huffman. She evidently has honored that request. The precise legal question is whether the prison's mail restriction, which removed Faye I. Huffman from the approved mailing list and the warden's request to Faye I. Huffman that she refrain from corresponding with Harold Eugene Huffman rise to the dignity of a deprivation of constitutional rights.
Generally, the constitutional right which may be violated by certain types of mail restrictions is the proscription of cruel and unusual punishment within the Eighth Amendment of the Constitution of the United States. The test is whether the restriction shocks the general conscience. Lee v. Tahash, 352 F.2d 970 (C.A. 8th Cir. 1965). The primary thrust by the petitioner Harold Eugene Huffman is that Faye I. Huffman is his lawful wife and therefore should be entitled to be on his approved mailing list. The prime foundational question, however, is whether Faye I. Huffman and Harold Eugene Huffman are legally husband and wife. According to the petition, they were married in Las Vegas, Nevada, on March 5, 1969, but there remains a serious question as to whether a prior existing marriage between Faye I. Huffman or Faye I. Boersen and Richard Boersen had been terminated by divorce or otherwise before the Nevada marriage was performed.
*157 Any adjudication by this court touching the issue of the validity of the Nevada marriage would have possible res judicata ramifications for most of, if not all, the six issues sought to be raised by the petition in this action. The validity of the marriage is central to Harold Eugene Huffman's insistence that his conviction was improper because Faye I. Huffman was permitted to testify against him, to his claim that the birth certificate of Donald Lee Boersen should be changed to reflect the name of Donald Lee Huffman, and the claim that Faye I. Huffman should be on his approved mailing list. So central a question should be resolved by the courts of the State of Nebraska. The principle of comity dictates that this court refrain from deciding the issue, so that the Nebraska courts may determine the state's policies regarding marriage validity.
The legal conditions and boundaries of marriage traditionally have been reserved to the states, and the states have a legitimate interest in preserving the proper marital relationships of their residents. Until such time as the Nebraska courts have had an opportunity to rule upon the legality of the Nevada marriage, the case of Lee v. Tahash, supra, serves to justify the present restriction on the mailing privileges of Harold Eugene Huffman. In that case it was said:
"Thus the fact that prison authorities, whether federal or state, have refused to allow mailing of some particular letter or letters or to some particular person or persons does not of itself afford basis for a prisoner to try to get into the federal courts. Nor will the fact that particular refusals seem to him to constitute improper interpretation of the prison regulations, or erroneous judgment on the letters themselves, or different treatment in relation to them than he feels has occurred as to some other prisoner or prisoners, of itself give rise to any justiciability. Whether improper interpretation, erroneous judgment, or variant administration may be involved in the restriction of some particular correspondence is, without more, mere institutional incident and not matter of judicial domain."
IV. BIRTH CERTIFICATE OF DONALD LEE BOERSEN
Attempt is made in this action to require the Nebraska Bureau of Vital Statistics to change the name appearing on the birth certificate from Donald Lee Boersen to Donald Lee Huffman, so as to reflect the surname of the father. Assuming that Harold Eugene Huffman has made sufficient allegations to give him standing to sue on behalf of Donald Lee Boersen, he nevertheless has not shown that there is a deprivation of some right, immunity or privilege secured by the constitution, laws or treaties of the United States. The keeping of the records of the Nebraska Bureau of Vital Statistics is a state matter, not a federal one. Resort must be had to the courts of Nebraska for the resolving of the issue sought to be raised.
V. VISITATIONS BY SON
The petition attempts to challenge the decision of an unspecified person who has prevented Harold Eugene Huffman during his incarceration from receiving visitations by his one-year-old son. The pleadings do not provide sufficient facts to indicate whether the lack of visitation is a part of some general scheme to isolate Harold Eugene Huffman from his family. It is entirely possible, as far as the pleadings are concerned, that no formal barriers stand in the way of a visit. There is no allegation that visitation has ever been denied to the son. Accordingly, this court is unable to read into the petition any assertion that a state official is denying Harold Eugene Huffman's son access to his father. The facts are insufficient to show any ground for relief in this court.
VI. CONVICTION OF HAROLD EUGENE HUFFMAN
Attack is made on the validity of Harold Eugene Huffman's conviction *158 for forgery, as violative of the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States. After reading the allegations of the petition and the decision of the Supreme Court of Nebraska in State v. Huffman, 185 Neb. 417, 176 N.W.2d 506 (1970), the appeal of the petitioner's conviction, this court now raises sua sponte, the failure of the petitioner to exhaust his state remedies. The allegations of the petition focusing on Faye I. Huffman's testifying against the petitioner in violation of the marital privilege have never been presented to a state court. Insofar as this action is a habeas corpus proceeding, therefore, it must be dismissed.
An appropriate order will be entered today. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1639041/ | 970 F. Supp. 566 (1997)
Linda PIPER, Plaintiff,
v.
KIMBERLY-CLARK CORPORATION, Defendant.
No. 3:95-CV-51.
United States District Court, E.D. Texas, Paris Division.
July 14, 1997.
*567 *568 Robert S. Davis, Copper, Flowers, Davis, Fraser & Derryberry, L.L.P., Tyler, TX, for Plaintiff.
John E. McFall, John G. Harrison, McFall Law Firm, Dallas, TX, for Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
SCHELL, Chief Judge.
This matter is before the court on Defendant Kimberly-Clark Corporation's ("Defendant") Motion for Reconsideration and Resubmission of Its Motions for Summary Judgment filed on February 18, 1997.[1] Defendant seeks summary judgment on Plaintiff Linda Piper's ("Plaintiff") claims of violations of the Americans with Disabilities Act ("ADA") and Texas Labor Code § 451.001. Plaintiff filed a response and a request for a jury trial on March 20, 1997. The court signed the Order Granting Defendant's Motion for Reconsideration of Motions for Summary Judgment ("Order") on March 21, 1997. Pursuant to the court's Order, Plaintiff filed her Second Supplemental Response to Defendant's Motion for Summary Judgment on April 30, 1997. Upon consideration of the parties' submissions and applicable law, the court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED.
BACKGROUND
Defendant Kimberly-Clark manufactures diapers and training pants at its facility in *569 Paris, Texas. Plaintiff Linda Piper began work for Defendant on July 10, 1989. Plaintiff worked as an Assistant Operator from the time of her hire until October 1992. From October 1992 until her termination in July 1994, Plaintiff worked as a Stores Clerk.
Stores Clerks are production support personnel who provide materials, tools, and parts for the mechanics and engineers on the production lines. Stores Clerks are responsible for receiving the large volume of parts and equipment delivered to the facility, for cataloguing and maintaining the inventory, and for filling orders (or picks) from the mechanics or engineers who are in the constant process of repairing or maintaining the seventeen production lines. Plaintiff's job operated on a 12-hour shift, required her to be on her feet "6-8 hours stocking parts, retrieving parts, or working with customers to identify parts", and required bending, reaching, and lifting. Def.'s Mot. for Partial Summ.J. at 2 (citing Pl.'s Dep. Ex. 5 (Physical Assessment of Job Function)).
In March 1994, Plaintiff injured her back while working in Defendant's Paris plant. On June 8, 1994, Plaintiff's treating physician, Dr. George Wharton, imposed the following medical restrictions on her ability to return to work: "Light/medium lifting," "No repetitive bending;" and "Not more than 8 hrs. per day." On or about July 2, 1994, Defendant terminated Plaintiff's employment allegedly because there were no jobs available at the facility that were consistent with her permanent eight-hour restriction.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. at 2510. The party moving for summary judgment has the burden to show that there is no genuine issue of fact and that it is entitled to judgment as a matter of law. See id. at 247, 106 S.Ct. at 2509-10. Because Plaintiff bears the burden of proof at trial on the issues of discrimination and retaliatory discharge, Defendant is not required to produce evidence negating the existence of a material fact; rather Defendant's burden is only to point out the absence of evidence supporting the nonmovant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If Defendant's motion demonstrates such an absence of evidence, "the nonmovant must come forward with evidence which would be sufficient to enable it to survive a motion for directed verdict at trial." Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.) (citation and internal quotations omitted), cert. denied, 506 U.S. 832, 113 S. Ct. 98, 121 L. Ed. 2d 59 (1992). The test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512.
DISCUSSION
I. AMERICANS WITH DISABILITIES ACT
A. Applicable Law
Title I of the ADA prohibits employment discrimination against a qualified individual with a disability because of the individual's disability. 42 U.S.C. § 12112(a). Unlawful discrimination includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity...." 42 U.S.C. § 12112(b)(5)(A).
A plaintiff bears the ultimate burden of persuading the trier of fact that she has been the victim of illegal discrimination based on her disability. Aikens v. Banana Republic, Inc., 877 F. Supp. 1031, 1036 *570 (S.D.Tex.1995). A plaintiff must first make out a prima facie case of an ADA violation by showing that: (1) she suffers from a disability; (2) she is qualified for the job; (3) she was subject to an adverse employment action; and (4) she was replaced by a non-disabled person or was treated less favorably than non-disabled employees. Daigle v. Liberty Life Insurance Co., 70 F.3d 394, 396 (5th Cir.1995). If the plaintiff establishes a prima facie case, the employer must come forward with evidence of a legitimate nondiscriminatory reason for its action. Id. Thereafter, as in all discrimination cases, any inferences arising from a prima facie case disappear, and the plaintiff must demonstrate that the employer's articulated reason was a pretext for unlawful discrimination. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc).
B. Analysis
With regard to Plaintiff's ADA claim, Defendant moves for summary judgment on three grounds: (1) Plaintiff is not "disabled" within the meaning of the ADA, (2) Plaintiff is not "qualified" for her past position of Stores Clerk; and (3) Plaintiff has not produced evidence that Defendant's articulated reason for her discharge was a pretext for unlawful discrimination. Because the court finds that Plaintiff has not demonstrated by competent summary judgment evidence that she is "disabled" within the meaning of the ADA, the court need not address the second and third grounds for summary judgment.
Plaintiff contends that she has a "disability"[2] within the meaning of the ADA because she has "a physical ... impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(A).[3] Plaintiff claims a substantial limitation of the major life activity of working.[4] To demonstrate that an impairment "substantially limits" the major life activity of working, an individual must show "significant[ ] restrict[ion] in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i) (1996) (emphasis added). "The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id.[5]
When determining whether an impairment substantially limits a major life activity, the court reviews the record for evidence of six factors set forth in the ADA regulations. See Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10th Cir.1994), cert. denied, 513 U.S. 1152, 115 S. Ct. 1104, 130 L. Ed. 2d 1071 (1995).[6] The first three factors "should be considered" when determining whether an impairment substantially limits a major life activity, 29 C.F.R. § 1630.2(j)(2), and the additional three factors "may be considered" when determining whether an impairment *571 substantially limits the major life activity of working. Id. § 1630.2(j)(3)(ii).
The three factors that "should be considered" when determining whether an impairment substantially limits a major life activity are: "(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id. § 1630.2(j)(2).
The three additional factors that "may be considered" when an individual claims substantial limitation in the major life activity of working are:
(A) The geographical area to which the individual has reasonable access;
(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that, geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).
Id. § 1630.2(j)(3)(ii); see Bolton v. Scrivner, Inc., 36 F.3d 939, 944 & n. 3 (10th Cir.1994) (affirming district court's grant of summary judgment in favor of defendant employer where plaintiff employee failed to produce evidence showing a significant restriction in his "ability to perform either a class of jobs or a broad range of jobs in various classes"), cert. denied, 513 U.S. 1152, 115 S. Ct. 1104, 130 L. Ed. 2d 1071 (1995).[7]
In support of her contention that she is "disabled" within the meaning of the ADA, Plaintiff presents the following affidavit testimony of her treating physician, Dr. George Wharton:
Ms. Piper has at least a 7% whole body impairment rating ... Ms. Piper may occasionally lift 35 pounds, frequently lift 20 pounds and constantly lift 1 to 5 pounds. She cannot work in any capacity that requires repetitive bending and may not work more than eight hours per day. These restrictions are permanent in nature. This places Ms. Piper in the light to light medium category. Ms. Piper should not repetitively squat, stoop, push or pull and must be able to stand and/or change positions as needed.
Order of September 30, 1996 at 4 (quoting Aff. of Dr. Wharton ¶ 6). While this evidence certainly establishes that Plaintiff has an impairment, Dr. Wharton's assessment of Plaintiff's condition alone is insufficient to create a genuine issue of material fact as to whether Plaintiff's impairment rises to the level of a "disability" within the meaning of the ADA. Therefore, the court finds it necessary to look for evidence of the three factors that "may be considered" in order to determine the number and type of jobs from which Piper is disqualified because of her physical impairment.
In addressing the "may be considered" factors, Plaintiff presents the affidavit and deposition testimony of Dr. Wharton and Nan Rose, an employee of the Texas Rehabilitation Commission. According to Dr. Wharton, "Ms. Piper's impairment is not simply an inability to perform a single or particular job; instead, Ms. Piper's impairment places her far enough outside the norm as to make it impossible or unusually difficult for Ms. Piper to perform work that could usually be done by most other people." Pl.'s Resp. to Def.'s Mot. for Summ. J. Ex. 3 at ¶ 4 (Aff. *572 of Dr. Wharton); see Pl.'s Second Supplemental Resp. to Def.'s Mot. for Summ. J., Dep. of Dr. Wharton at 53 (stating that Piper is precluded from "a class of jobs which required constant bending, pushing, pulling or activities in the range of one to five pounds; frequent bending and lifting activities in the range of twenty pounds and occasional bending and lifting activities inn the range of thirty-five pounds and which required any bending on a repetitive basis or chose jobs which exceeded any of those categories."). Ms. Rose states that "Linda Piper's impairment is a significant impairment, and she has a significant restriction in the ability to perform a class of jobs and a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." Pl.'s Supplemental Resp. to Def.'s Mot. for Summ. J. Ex. 2 at ¶ 7 (Aff. of Nan Rose); Pl.'s Second Supplemental Resp. to Def.'s Mot. for Summ. J. at 11 (citing Dep. of Nan Rose at 128-29). This affidavit and deposition testimony, however, is insufficient to raise a genuine issue of material fact because it is conclusory in nature and often merely parrots the language of the ADA regulations.[8]
In addition to the conclusory nature of the statements found in the affidavit and deposition testimony with regard to Plaintiff's alleged inability to perform a class of jobs and a broad range of jobs, Plaintiff cites the deposition testimony of Nan Rose for the proposition that the geographical area to which Plaintiff has reasonable access has few job opportunities for which Plaintiff is qualified. Pl.'s Second Supplemental Resp. to Def.'s Mot. for Summ. J. at 11-12. According to Ms. Rose, jobs are not very prevalent in Paris for a 45-year old white female with disk desiccation from a prior work-related injury. Id., Dep. of Nan Rose at 131-32.[9] Although Ms. Rose's deposition testimony is arguably relevant, it at best paints an ambiguous picture of the job market in Lamar County and its surrounding area. Even assuming that the geographical area to which Plaintiff has reasonable access has few job opportunities regardless of a prospective employee's impairment, Plaintiff has still failed to produce evidence showing the number and types of jobs from which Plaintiff is disqualified due to her impairment. In other words, Plaintiff's summary judgment evidence does not satisfy the court's concern that Plaintiff's physical impairment merely disqualifies her from her past position as Stores Clerk.
Because Plaintiff has failed to produce evidence establishing the number and types of jobs in Lamar County and the surrounding area from which Plaintiff is disqualified due to her impairment,[10] the court finds that Plaintiff has not created a genuine issue of material fact as to whether she is substantially limited in the major life activity of working, and, therefore, "disabled" within the meaning of the ADA. See Bridges v. City of Bossier, 92 F.3d 329, 333-34 (5th Cir.1996) (affirming district court's finding that Bridges was substantially limited in only a narrow range of jobs, specifically firefighting, where no record evidence supported Bridges' contention that he was substantially limited *573 in a "class of jobs" or "broad range of jobs in various classes"), cert. denied, ___ U.S. ___, 117 S. Ct. 770, 136 L. Ed. 2d 715 (1997); Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir.1994) (finding summary judgment appropriate where the plaintiff did not produce evidence addressing his vocational training, the geographical area to which he had access, or the number and type of jobs demanding similar training from which the plaintiff would also be disqualified), cert. denied, 513 U.S. 1152, 115 S. Ct. 1104, 130 L. Ed. 2d 1071 (1995).[11]
Plaintiff also claims that she is "disabled" within the meaning of the ADA because she has a record of a substantially limiting impairment and Defendant regarded her as having a substantially limiting impairment. Pl.'s Second Supplemental Resp. to Def.'s Mot. for Summ. J. at 15-16. 29 C.F.R. § 1630.2 states:
(k) Has a record of such impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(l) Is regarded as having such an impairment means:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has none of the impairments defined [in this section] but is treated by a covered entity as having a substantially limiting impairment.
29 C.F.R. § 1630.2 (emphasis in original).
The record is undisputed that Plaintiff had an impairment that limited her to eight-hour work days in the position of Stores Clerk. The record is also undisputed that Defendant knew of this impairment and discharged Plaintiff because she could not fulfill the 12-hour shift requirement of the Stores Clerk position. See Pl.'s Resp. to Def.'s Mot. for Summ. J. Ex. 2 at 52 (Dep. of Gary Short) (stating that the only restriction that fell outside of the job requirements of Stores Clerk was the eight-hour restriction); id. Ex I at ¶ 8 (Aff. of Linda Piper) ("On June 27, 1994, Peggy from Kimberly-Clark talked to Ahleen Nyhoff. Ahleen Nyhoff said that 12 hour shifts were the problem."). Plaintiff, however, has failed to put forth evidence upon which a factfinder could conclude that she has a record of, or was regarded as having, an impairment that substantially limited her major life activities. Specifically, Plaintiff failed to put forth evidence that her inability to work 12-hour shifts disqualified her from a class of jobs or a broad range of jobs in various classes or that Defendant regarded Plaintiff's inability to work 12-hour shifts as an impairment that disqualified her from a class of jobs or a broad range jobs in various classes. See Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 806 (5th Cir.1997) ("An employer does not necessarily regard an employee as having a substantially limiting impairment simply because it believes that she is incapable of performing a particular job").
Accordingly, summary judgment is appropriate with respect to Plaintiff's ADA claim because Plaintiff is unable to show that she has a "disability" within the meaning of the ADA.
II. TEXAS RETALIATORY DISCHARGE CLAIM
A. Applicable Law
"Section 451.001 of the Texas Labor Code is a statutory exception to the Texas common law doctrine of employment-at-will." Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 589 (5th Cir.1995). The statute prohibits an employer from discharging or discriminating against an employee because the employee has filed a workers' compensation claim in good faith. TEX. LAB. CODE § 451.001; Burfield, 51 F.3d at 589. Specifically, the statute provides:
*574 A person may not discharge or in any other manner discriminate against an employee because the employee has:
(1) filed a workers' compensation claim in good faith;
(2) hired a lawyer to represent the employee in a claim,
(3) instituted or caused to be instituted in good faith a proceeding under
Subtitle A; or
(4) testified or is about to testify in a proceeding under Subtitle A.
TEX. LAB. CODE § 451.001. The Texas Legislature enacted § 451.001 "to protect persons who are entitled to benefits under the Worker's Compensation Law and to prevent them from being discharged by reason of taking steps to collect such benefits." Carnation Co. v. Borner, 610 S.W.2d 450, 453 (Tex. 1980).
In pursuing a claim under § 451.001, the plaintiff has the burden of establishing a causal nexus between the filing of a workers' compensation claim and his discharge or other adverse action taken by his employer. Parham v. Carrier Corp., 9 F.3d 383, 386 (5th Cir.1993).[12] "The plaintiff need not prove that his quest for workers' compensation was the sole reason for his discharge, but he must establish that it was a determining factor." Parham, 9 F.3d at 386. Once the plaintiff has shown a causal link, the employer may rebut the plaintiff's showing by demonstrating that the discharge was actually for a reason unrelated to the plaintiff's pursuit of workers' compensation benefits. Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d 559, 562 (5th Cir.1992). "Thereafter, in order to survive a motion for summary judgment, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive" Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App. Houston [1st Dist.] 1996, n.w.h.). An employer is entitled to summary judgment in a retaliatory discharge suit brought by an employee who has filed a workers' compensation claim when the employer establishes a legitimate, nondiscriminatory reason for the discharge and the employee fails to produce any evidence of a retaliatory motive. See Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994).
B. Analysis
Defendant contends summary judgment is appropriate as to Plaintiff's retaliatory discharge claim because Plaintiff has failed to present any evidence to establish a causal connection between her discharge and her workers' compensation claim. Def.'s Mot. for Summ. J. at 4. Plaintiff counters this assertion with a laundry list of circumstantial evidence in support of her retaliatory discharge claim. Pl.'s Second Supplemental Resp. to Def.'s Mot. for Summ. J. at 22.[13]*575 Despite Plaintiff's failure to direct the court to the specific portions of the record which support her claim,[14] the court will assume for purposes of this motion that the record evidence establishes a causal connection between Plaintiff's discharge and her workers' compensation claim.
With the causal link established, the court must determine if Defendant has produced evidence to rebut Plaintiff's showing by demonstrating that Plaintiff's discharge was for a reason unrelated to her workers' compensation claim. According to Defendant, Plaintiff was discharged because there were no jobs available at the facility that were consistent with her permanent eight-hour restriction. Def.'s Mot. for Summ. J. at 3 ¶ 7 (citing Aff. of Gary Short at ¶ 11; Pl.'s Dep. Ex. 10 (termination letter)). In response, Plaintiff has failed to controvert Defendant's legitimate nondiscriminatory reason for Plaintiff's discharge with evidence of a retaliatory motive. Specifically, Plaintiff has produced no evidence that the 12-hour shift was anything but essential to the function of Stores Clerk.[15] Additionally, Plaintiff has produced no evidence that there were eight-hour jobs available at the plant for which she was qualified at the time of her discharge.[16] With no controverting evidence, summary judgment is appropriate as to Plaintiff's retaliatory discharge claim.
CONCLUSION
For the foregoing reasons, the court GRANTS Defendant's Motion for Summary Judgment.
NOTES
[1] Defendant initially filed a motion for partial summary judgment with regard to Plaintiff's claims under the ADA on May 16, 1996. Defendant filed a second motion for summary judgment on September 20, 1996, incorporating by reference Defendant's first motion and expanding the motion to include Plaintiff's claim of retaliatory discharge in violation of the Texas Workers' Compensation Act. The Honorable William Wayne Justice denied Defendant's first motion for partial summary judgment by his September 30, 1996 Order. Defendant's second motion was denied as untimely during an October 2, 1996 pre-trial conference. This action was transferred to this court by Judge Justice's Order of January 21, 1997.
[2] "The term `disability' means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
[3] Plaintiff also claims, almost in passing, that she has a record of an impairment and that Defendant regarded her as having an impairment. Pl.'s Second Supplemental Resp. to Def.'s Mot. for Summ. J. at 15-16.
[4] "Major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Other major life activities could include lifting, reaching, sitting, or standing. Id. § 1630, Appendix to Part 1630 Interpretive Guidance on Title I of the ADA, § 1630.2(i).
[5] See Welsh v. City of Tulsa, 977 F.2d 1415, 1417 (10th Cir.1992) ("While the [Rehabilitation Act] regulations define a major life activity to include working, this does not necessarily mean working at the job of one's choice."). Although Welsh was a Rehabilitation Act case, "[t]he legislative history of the ADA indicates that Congress intended that the relevant caselaw developed under the Rehabilitation Act be generally applicable to the term `disability' as used in the ADA." Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10th Cir.1994) (citation and internal quotations omitted), cert. denied, 513 U.S. 1152, 115 S. Ct. 1104, 130 L. Ed. 2d 1071 (1995).
[6] Although the regulations promulgated by the EEOC under the ADA are not binding, they do provide the court with significant guidance. See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir.1995).
[7] Bolton only introduced evidence that went to the nature and severity, duration, and impact of Bolton's impairment (the "should be considered" factors) Bolton, 36 F.3d at 944. For purposes of appellate review, the Bolton court assumed that Bolton's evidence demonstrated a relatively severe impairment, of long term duration, producing a permanent or long term impact. Id. at 944 n. 3. According to the Tenth Circuit, however, summary judgment was appropriate because Bolton's evidence did not address his vocational training, the geographical area to which he had access, or the number and types of jobs demanding similar training from which Bolton would also be disqualified. Id. at 944.
[8] Facts, not buzzwords, defeat a motion for summary judgment. In response to a motion for summary judgment, a plaintiff is required to point out specific facts showing that there is a genuine issue for trial because summary judgment is designed to go beyond the pleadings in order to assess the proof and ascertain whether a claim is baseless and should be dismissed or, alternatively, whether a genuine fact issue exists and trial is necessary. Fontenot v. Upjohn Co., 780 F.2d 1190, 1196 (5th Cir.1986). "Because the opponent of a summary judgment motion must designate specific facts, it is not enough that he merely restate his claims general allegations and self-serving conclusions unsupported by specific facts are not adequate." Castillo v. Bowles, 687 F. Supp. 277, 280 (N.D.Tex.1988).
[9] The court is only concerned with the number and types of jobs from which Plaintiff is disqualified due to her physical impairment, not due to her age, gender, or any other personal characteristic.
[10] "The terms `number and types of jobs' and `number and types of other jobs'... are not intended to require an onerous evidentiary showing. Rather, the terms only require the presentation of evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., `few', `many', `most') from which an individual would be excluded because of an impairment." 29 C.F.R. § 1630, Appendix to Part 1630 Interpretive Guidance on Title I of the ADA, § 1630.2(j).
[11] See Bridges, 92 F.3d at 335 (finding the Tenth Circuit's approach in Bolton, 36 F.3d at 942, closer to the Fifth Circuit's understanding of a substantial limitation on the major life activity of working).
[12] An employee may show causation by direct or circumstantial evidence, including the reasonable inferences that may be drawn from such evidence. Investment Properties Management, Inc. v. Montes, 821 S.W.2d 691, 694 (Tex.App. El Paso 1991, no writ); see Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App. Fort Worth 1993, writ denied). Such evidence includes: (1) knowledge of the claim by those making the decision to terminate; (2) a negative attitude toward the employee's injured condition; (3) failure to follow company policy when disciplining an employee who made a claim; and (4) discriminatory treatment of the employee when compared to the treatment of other employees with the same disciplinary problem. Id.
[13] According to Plaintiff, the following facts constitute ample evidence to avoid summary judgment as to her retaliatory discharge claim:
In the instant case, the Plaintiff was terminated shortly after filing her worker's compensations claim and being diagnosed with a permanent disability; the nurse for the worker's compensation carrier was involved in the process within Kimberly-Clark that led to Plaintiff's termination; the Worker's Compensation Carrier sent Ms. Piper a letter stating that she might lose her job; other employees who had disabilities that were not permanent were accommodated for as long as one year until a job came open for them or other arrangements could be made to accommodate them; the staff at Kimberly-Clark asked Ms. Piper to confirm that her disability was permanent prior to firing her: Kimberly-Clark in Paris is very aggressive in fighting job related injuries and receives awards for good performance in that area; Kimberly-Clark's in-house counsel was involved in conversations with the representatives at Kimberly-Clark in Paris about Ms. Piper prior to terminating her; the company's medical staff at the plant received copies of the Plaintiff's medical records; the adverse employment decision was made by Gary Short who knew of the Plaintiff's worker's compensation claim; Gary Short had a negative attitude toward Ms. Piper; and Nan Rose, the head of the Texas Rehabilitation Commission in Paris, Texas has testified that Kimberly-Clark has a policy, custom and practice of discriminating against individuals who file worker's compensation claims.
Pl.'s Second Supplemental Resp. at 22.
[14] "In general, Rule 56 obligates the nonmovant to designate the specific facts in the record that create genuine issues precluding summary judgment." Bookman v. Shubzda, 945 F. Supp. 999, 1004 (N.D.Tex.1996). "When a party fails to refer to items in the record, the evidence is not properly before the court in deciding whether to grant the motion." Id. (citations omitted).
[15] Plaintiff recognized that the 12-hour shift was part of the job description and produced no evidence indicating that the required hours of attendance were selectively enforced or in any way a marginal function of the job. Def.'s Mot. for Partial Summ. J. Ex B at 40-44, 104 (Dep. of Linda Piper).
[16] Instead of controverting Defendant's assertion that no eight hour jobs were available at the time of Plaintiff's termination, Plaintiff argues that Defendant should have used one of the temporary summer hires to fill the remaining four hours in her shift until an eight-hour position became available. Pl.'s Second Supplemental Resp. to Def.'s Mot. for Summ. J. at 7-9. While this argument addresses the now moot issue of whether Defendant could have made a reasonable accommodation, it also implicitly acknowledges that there were no jobs a available at the time of Plaintiff's termination that were consistent with her permanent eight-hour restriction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1883894/ | 201 B.R. 98 (1996)
In re Robert L. LITTLE and Jean M. Little, Debtors.
Bankruptcy No. 95-28671.
United States Bankruptcy Court, D. New Jersey.
September 13, 1996.
*99 *100 Mark Goldman, P.C., East Orange, New Jersey by Mark Goldman, for Debtors Robert L. Little and Jean M. Little.
William M.E. Powers, Jr. Chartered, Medford, New Jersey by William M.E. Powers, III, for General Electric Capital Mortgage Services, Inc.
OPINION
ROSEMARY GAMBARDELLA, Bankruptcy Judge.
The matter before the Court is a motion filed by General Electric Capital Mortgage Services, Inc. ("G.E. Capital"), a secured creditor, for relief from the automatic stay pursuant to 11 U.S.C. § 362(d) and excluding certain real property from the Debtor's estate based on the Debtor or Trustee's failure to timely redeem the subject property under 11 U.S.C. § 108(b).
FACTS
On or about November 23, 1988, the debtors, Robert L. Little and Jean M. Little, purchased real property located at 26 Lake Shore Drive, Rockaway, New Jersey ("the Property") which they used as their primary residence. The debtors executed a mortgage in the amount of $85,000.00 in favor of Travelers Mortgage Services, Inc. The debtors subsequently defaulted on the mortgage, the mortgagee, G.E. Capital, commenced a foreclosure action and a final judgment in foreclosure was entered. The Morris County Sheriff conducted a foreclosure sale of the Property on October 30, 1995 at which time a third party bidder bid on the subject property. No Sheriff's deed was delivered to the purchaser prior to the Debtors filing their Chapter 13 petition.
The debtors filed the within Chapter 13 bankruptcy petition on November 3, 1995, within the ten (10) day state law redemption period.
As of January 2, 1996, which is sixty (60) days after the Debtors had filed their Chapter 13 petition, the debtors had not exercised their state law redemption rights with respect to the Property. The Debtors seek to invoke the provisions of Section 1322 of the Code to reinstate the mortgage, decelerate the mortgage payments and cure all defaults in the mortgage which was foreclosed upon. The Debtors have proposed a plan wherein the Debtor seeks to cure, under § 1322 of the Code, all mortgage arrearages over a period of sixty (60) months.
The issue presented by this case is whether the debtors, who have filed a Chapter 13 petition within 10 days following the foreclosure sale of real property used as their principal residence may, more than sixty days after the filing of the debtors' Chapter 13 petition, reinstate the mortgage, decelerate the mortgage indebtedness, and cure the default by resuming payments according to the provisions of a Chapter 13 plan.
A hearing was conducted on March 28, 1996 at which time the Court reserved decision. This Opinion constitutes this Court's Findings of Fact and Conclusions of Law pursuant to Bankruptcy Rule 7052.
DISCUSSION
I. SECTION 1322 OF THE BANKRUPTCY CODE
The relevant section to this Court's analysis is Section 1322 of the Bankruptcy Code, as amended by the Bankruptcy Reform Act. The amendment to section 1322 applies to cases filed after October 22, 1994. Because the Debtors' petition was filed on November 3, 1995, the amended Section 1322 is applicable to this case.
The relevant provisions of amended Section 1322 provide:
(b) Subject to subsections (a) and (c) of this section, the plan may
* * * * * *
(2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims;
(3) provide for the curing or waiving of any default;
* * * * * *
*101 (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim in which the last payment is due after the date on which the final payment under the plan is due;
* * * * * *
(c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law
(1) a default with respect to, or that gave rise to, a lien on the debtor's principal residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law;....
11 U.S.C. § 1322 (1994) (emphasis added).
As explained in the legislative history of the Bankruptcy Reform Act of 1994, section 1322(c) effectively overruled the Third Circuit's decisions in Matter of Roach, 824 F.2d 1370 (3d Cir.1987) and First National Fidelity Corp. v. Perry, 945 F.2d 61 (3d Cir.1991). H.R.Rep. No. 835, 103rd Cong., 2d Sess. 52 (1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3360-61. Specifically, the legislative history provides:
Section 1322(b)(3) and (5) of the Bankruptcy Code permit a debtor to cure defaults in connection with a chapter 13 plan, including defaults on a home mortgage loan. Until the Third Circuit's decision in Matter of Roach, 824 F.2d 1370 (3d Cir. 1987), all of the Federal Circuit Courts of Appeal had held that such right continues at least up until the time of the foreclosure sale. See In re Glenn, 760 F.2d 1428 (6th Cir.1985), cert. denied, 474 U.S. 849 [106 S. Ct. 144, 88 L. Ed. 2d 119] (1985); Matter of Clark, 738 F.2d 869 (7th Cir.1984), cert. denied, 474 U.S. 849 [106 S. Ct. 144, 88 L. Ed. 2d 119] (1985). The Roach case, however, held that the debtor's right to cure was extinguished at the time of the foreclosure judgment, which occurs in advance of the foreclosure sale. This decision is in conflict with the fundamental bankruptcy principle allowing the debtor a fresh start through bankruptcy.
This section of the bill safeguards a debtor's rights in a chapter 13 case by allowing the debtor to cure home mortgage defaults at least through completion of a foreclosure sale under applicable nonbankruptcy law. However, if the State provides the debtor more extensive "cure" rights (through, for example, some later redemption period), the debtor would continue to enjoy such rights in bankruptcy. The changes made by this section, in conjunction with those made in section 305 of this bill, would also overrule the result in First National Fidelity Corp. v. Perry, 945 F.2d 61 (3d Cir.1991) with respect to mortgages on which the last payment on the original payment schedule is due before the date on which the final payment under the plan is due. In that case, the Third Circuit held that subsequent to foreclosure judgment, a chapter 13 debtor cannot provide for a mortgage debt by paying the full amount of the allowed secured claim in accordance with Bankruptcy Code section 1325(a)(5), because doing so would constitute an impermissible modification of the mortgage holder's right to immediate payment under section 1322(b)(2) of the Bankruptcy Code.
Id. (emphasis added).
In interpreting the above legislative history, this Court must address two issues:
(1) the meaning of section 1322(c)(1)'s phrase "until such residence is sold at a foreclosure sale"; and
(2) whether New Jersey "provides the debtor more extensive `cure' rights (through, for example, some later redemption period)," and if so, what are those rights that "the debtor would continue to enjoy ... in bankruptcy."
The Court notes that the issue presently before this Court was recently addressed by two bankruptcy courts in the District of New Jersey. See In re Ross, 191 B.R. 615 (Bankr.D.N.J.1996) (Wizmur, J.) and In re Macavia, No. 95-34118 (Bankr.D.N.J. date decided October 19, 1995) (Ferguson, J.) (unpublished opinion). The Ross and Macavia courts held that a New Jersey homeowner may under Section 1322(c)(1) provide in his or her Chapter 13 plan for cure of any defaults *102 and reinstatement of the mortgage on his primary residence following the entry of a foreclosure judgment and conduct of a sheriff's sale until the actual delivery of the sheriff's deed to the successful purchaser. See In re Ross, 191 B.R. at 621 ("We conclude that a New Jersey foreclosure sale is complete when the sheriff delivers the deed to the successful purchaser. Therefore, in New Jersey, under § 1322(c)(1), a Chapter 13 debtor may cure a default and reinstate a residential mortgage following the entry of a foreclosure judgment and the conduct of a sheriff's sale, until the actual delivery of a sheriff's deed to the successful purchaser.") See In re Macavia, Id. at 5 ("[A]t the time of the filing the Debtors retained an interest in the property in that the deed had not been delivered under New Jersey law the equity of redemption was not extinguished. Section 1322(c)(1) allows a debtor to cure until the foreclosure sale is complete. Since the sale is not complete until the delivery of the deed and the Debtors filed before delivery, they retain their right to cure the default through their Chapter 13 plan.").
For the reasons set forth herein, this Court respectfully declines to follow the respective holdings of Ross and Macavia. Rather, this Court for the reasons set forth below holds that the termination date of the right to cure a default through a Chapter 13 plan under § 1322(c)(1) is the date of the sheriff sale of the mortgaged property. While the debtors retained their state law right of redemption after filing their Chapter 13 petition within 10 days following the sale, they cannot extend that right of redemption under a Chapter 13 plan that is filed after a foreclosure sale beyond the 10 day state law redemption period as extended an additional 60 days by operation of 11 U.S.C. § 108(b). In re Roach, 824 F.2d at 1372, n. 1.
A. The Meaning of the Phrase "Until Such Residence is Sold at a Foreclosure Sale" Under 11 U.S.C. § 1322(c)(1).
State law determines the existence and extent of the right of redemption after sale, or at any other point in the foreclosure action. See Butner v. United States, 440 U.S. 48, 55, 99 S. Ct. 914, 918, 59 L. Ed. 2d 136 (1979). See also Union Cty. Savings Bank v. Johnson, 210 N.J.Super. 589, 595, 510 A.2d 288 (Ch.Div.1986). Accordingly, this Court must first turn to New Jersey law to determine when, under New Jersey law, the property is deemed "sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law." This provision may be deemed ambiguous in light of the distinction under New Jersey between equitable title and legal title to property. Legal title to real property is conveyed to the mortgagee upon execution of a mortgage, but is subject to defeasance through performance of the condition subsequent, payment of the mortgage debt. If the mortgagor fails to pay the mortgage debt in accordance with the terms of the mortgage, legal title vests in the mortgagee and the mortgagee may institute foreclosure proceedings. The mortgagor may bring an equitable action to redeem the property, which gives the mortgagor the right to pay the mortgage indebtedness, costs of foreclosure and costs of sale and thereby recover full legal ownership of the property. Lobsenz v. Micucci Holdings, Inc., 127 N.J.Super. 50, 51, 316 A.2d 59 (App. Div.1974); 30 New Jersey Practice, Law of Mortgages § 181, at 2 (Roger A. Cunningham & Saul Tischler) (1975).
As explained in Union Cty. Savings Bank v. Johnson, 210 N.J.Super. 589, 510 A.2d 288 (Ch.Div.1986), a purchaser gains equitable title to premises that are the subject of a foreclosure sale once the purchaser successfully bids on the property, however, the purchaser does not vest with legal title until the delivery of the deed. 210 N.J.Super. at 594, 510 A.2d 288. Therefore, one may contend that property is not actually "sold at a foreclosure sale" under New Jersey's property laws until the buyer gains legal title which may be weeks after the foreclosure sale.
Although the Ross and Macavia courts followed this reasoning, this Court finds that both the plain meaning of section 1322(c) and its legislative history as well as New Jersey law support a ruling that the day of the foreclosure sale when the property is successfully bid upon terminates the debtor's *103 ability to cure defaults under a Chapter 13 plan.
B. Does New Jersey "provide [] the debtor more extensive `cure' rights (through, for example, some later redemption period)?"
The legislative history accompanying the amended version of Section 1322 suggests that the debtor should be given the maximum permissible time in which to redeem the property. Thus, if state law permits an extended redemption period, the debtor should be entitled to exercise his redemption right for the duration of that extended period. The Court now turns to the question of whether New Jersey affords the debtor the right to redeem the property beyond the 10 day state law redemption period as extended an additional 60 days by operation of 11 U.S.C. § 108(b).
Under New Jersey law, the right of redemption arises by statute, N.J.S.A. 2A:50-16 et seq., by rule, Rule 4:65-5, 6 and by equity. See generally In re Mocco, 176 B.R. 335, 344 (Bankr.D.N.J.1995) (Gindin, C.J.). New Jersey law provides an equitable right of redemption to a mortgagor. Hardyston Nat'l Bank v. Tartamella, 56 N.J. 508, 513, 267 A.2d 495, 497 (1970). In conjunction with this equitable right, New Jersey has established certain rules governing foreclosure sales, specifically R. 4:65-5 which provide that:
A sheriff who is authorized or ordered to sell real estate shall deliver a good and sufficient conveyance in pursuance of the sale unless a motion for the hearing of an objection to the sale is served within 10 days after the sale or at any time thereafter before the delivery of the conveyance. Notice of motion shall be given to all persons in interest.
New Jersey Court Rule 4:65-5. The New Jersey Supreme Court has held that a mortgagor may exercise the right of redemption "within the ten-day period fixed by R. 4:65-5 for objection to the sale and until an order confirming the sale if objections are filed under the rule." Hardyston, 56 N.J. at 513, 267 A.2d at 497; see also East Jersey Sav. & Loan Ass'n v. Shatto, 226 N.J.Super. 473, 481-82, 544 A.2d 899, 903 (Ch.Div.1987) (clarifying the rule in Hardyston, stating that upon filing an objection to a foreclosure sale, no further redemption or tender of the same may be made until the motion is decided favorably to the objector so that a mortgagor cannot take advantage of a period of time between the motion and the ultimate decision thereby extending the time for redemption never contemplated by the rule, substantive law or policy expressed in Hardyston). In Hardyston, the court held that a mortgagor is entitled to redeem the property within the ten-day statutory period for objections to foreclosure sale and until an order confirming sale if objections are filed. 56 N.J. at 513-14, 267 A.2d 495.
Under New Jersey law, a Chapter 13 filing does not alone operate as an "objection" to the sale under Rule 4:65-5. Union County Sav. Bank v. Johnson, 210 N.J.Super. 589, 594, 510 A.2d 288 (Ch.Div. 1986). In Union County Sav. Bank v. Johnson, the court held that, because the former mortgagor failed to object to the sale within the ten day period provided by Rule 4:65-5, the mortgagor lost her right of redemption and the filing of a Chapter 13 petition could not revive that redemption right. 210 N.J.Super. at 594, 510 A.2d 288 (quoting Penn Fed. Sav. & Loan Ass'n v. Joyce, 75 N.J.Super. 275, 282-83, 183 A.2d 114 (App. Div.1962), for the proposition that "the mortgagor has no right, as a matter of course, to redeem mortgaged premises after foreclosure sale and prior to the delivery of the sheriff's deed to a successful bidder"). As the Union County court explained, unless objection to the sale is filed in accordance with the New Jersey Court Rules, equitable title to the property is indefeasibly vested in the successful bidder and may not subsequently be overturned by the former mortgagor's attempts to redeem the property. 210 N.J.Super. at 594, 510 A.2d 288.
More recently, the New Jersey Supreme Court implicitly recognized that, subject to objection, the mortgagor's statutory right of redemption would be terminated once three events took place: (1) an action to foreclose the mortgage was instituted pursuant to N.J.S.A. § 2A:50-2; (2) a writ of execution *104 for sale of the premises is obtained pursuant to N.J.S.A. § 2A:50-36; and (3) sale of the property at foreclosure pursuant to N.J.S.A. § 2A:50-37.[1]Chase Manhattan Bank v. Josephson, 135 N.J. 209, 218, 638 A.2d 1301, appeal dismissed, 136 N.J. 292, 642 A.2d 1002 (1994).
The case of McEwen v. Federal Nat'l Mortgage Ass'n, 194 B.R. 594 (N.D.Ill. 1996), is distinguishable from the case presently before this Court on several grounds. The most obvious distinction between McEwen and this case is that McEwen interprets the law of Illinois rather than the law of New Jersey. In McEwen, the debtors filed their Chapter 13 plan after the judicial sale of their residence and before the sale had been confirmed by the state court. The McEwen court held that Section 1322(c)(1) permitted the debtors the opportunity to cure defaults with respect to a residential mortgage, finding that a foreclosure sale is not conducted under Illinois law until the judicial sale has been confirmed by the court. Id. at 596. The Illinois foreclosure process is notably different than that of New Jersey. A foreclosure sale under Illinois law does not occur until it is confirmed by the court. Id. at 596 (citing In Matter of Application of Rosewell, 236 Ill.App.3d 473, 177 Ill. Dec. 683, 603 N.E.2d 753 (1992)). The highest bid received by a sheriff at a judicial sale conducted under Illinois law is merely an irrevocable offer to purchase the property and acceptance of the offer takes place only when the court confirms the sale. Id. (citing Straus v. Anderson, 366 Ill. 426, 9 N.E.2d 205 (1937)). Under New Jersey law, however, title to the property is indefeasibly vested in the successful bidder unless objection to the sale is filed within ten days. Union County, 210 N.J.Super. at 594, 510 A.2d 288. In addition, under Illinois law, confirmation of sale is not "simply a ministerial act to be routinely performed by the state court." Id. at 596, 510 A.2d 288. Under New Jersey foreclosure law, delivery of the deed by the sheriff is a ministerial act, routinely performed, which does not affect the redemption rights of the parties. See, e.g. Porreca v. LaFerriere, 225 N.J.Super. 590, 591, 543 A.2d 102 (App.Div. 1988); Banker's Trust Co. v. Maxson, 100 N.J.Eq. 1, 12, 134 A. 875 (Ch.Div.1926).
Similarly, the case of In re Barham, 193 B.R. 229 (Bankr.E.D.N.C.1996) is distinguishable from the case at bar. In Barham, the debtors filed a Chapter 13 petition after foreclosure sale but before the expiration of a statutory upset bid period prescribed by North Carolina law. The Barham court held that a foreclosure sale conducted in accordance with North Carolina law is not complete until the expiration of a statutory upset bid period. The final and highest bidder at a foreclosure sale under North Carolina law is merely a "proposed purchaser" who has no rights, or entirely voidable rights, to the property until the upset bid period expires. Id. at 232 (citing Cherry v. Gilliam, 195 N.C. 233, 141 S.E. 594 (1928)). Under North Carolina law, any person may purchase real property after a foreclosure sale by bidding at least 10 percent more than the sale price or the last upset bid, and making the upset bid prior to the close of business on the tenth day after sale or the last upset bid. Id. New Jersey law, however, does not permit further bidding after the date of the foreclosure sale. Once a foreclosure sale is conducted in accordance with New Jersey law, the debtor maintains only the right to redeem the property by paying the mortgage indebtedness, costs of foreclosure and costs of sale. Lobsenz v. Micucci Holdings, Inc., 127 N.J.Super. 50, 51, 316 A.2d 59 (App.Div.1974); 30 New Jersey Practice, Law of Mortgages § 183, at 7 (Roger A. Cunningham & Saul Tischler) (1975). Accordingly, this Court holds that in New Jersey, a Chapter 13 debtor may cure a default and reinstate a residential mortgage following the entry of a foreclosure judgment but only prior to the conduct of a sheriff sale, notwithstanding the fact that the actual delivery of the sheriff's deed to the successful purchaser has not been accomplished before the bankruptcy filing. To the extent applicable, *105 the debtor would retain his or her state law redemption rights existing at the time of the bankruptcy filing extended by operation of § 108(b) for a period of 60 days.
The debtors here failed to exercise their right of redemption within ten (10) days of the sheriff sale. However, the debtors did file a Chapter 13 petition within the 10 day period in which they were permitted to redeem the property under state law. Such filing did not constitute an effective objection to the sale. See Union County Sav. Bank v. Johnson, supra, 210 N.J.Super. at 594, 510 A.2d 288.
The provisions of Section 108 of the Bankruptcy Code provide in relevant part, however, that:
(b) Except as provided in subsection (a) of this section, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor or an individual protected under Section 1201 or 1301 of this title may file any pleading, demand, notice, or proof of claim or loss, cure a default, or perform any other similar act, and such period has not expired before the date of the filing of the petition, the trustee may only file, cure, or perform, as the case may be, before the later of
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) 60 days after the order for relief.
11 U.S.C. § 108(b). Consequently, the debtors' state law right of redemption, to the extent that it exists when a bankruptcy petition is filed, is extended for 60 days beyond the commencement of the bankruptcy proceeding by operation of Section 108 of the Bankruptcy Code. See, e.g., Matter of Roach, 824 F.2d 1370, 1372 n. 1 (3d Cir.1987) (11 U.S.C. § 108 extends the state law right of redemption); In re Brown, 73 B.R. 306, 309 (Bankr.D.N.J.1987).
In the case at bar, the debtors filed their petition on November 3, 1995. The state law redemption period expired on November 9, 1995. However, because Section 108(b) of the Code applies, the debtors had until January 2, 1996 to redeem their residence. Such redemption is accomplished by the payment in full of the mortgage indebtedness, costs of foreclosure and costs of sale. Lobsenz v. Micucci Holdings, Inc., 127 N.J.Super. 50, 51, 316 A.2d 59 (App.Div. 1974); 30 New Jersey Practice, Law of Mortgages § 183, at 7 (Roger A. Cunningham & Saul Tischler) (1975). The debtors failed to do so and accordingly they have lost all title, right and interest in that property. The property is not property of the estate, and the debtors, therefore, may not propose to cure arrearages in their Chapter 13 plan. Accordingly, "cause" exists under § 362 to grant relief from the automatic stay to allow the Morris County Sheriff to deliver the deed to the successful bidder in this case.[2]
II. CONSISTENCY WITH LEGISLATIVE HISTORY OF 11 U.S.C. § 1322
The holding of this Court that the debtors in this case, having filed their petition within 10 days after the foreclosure sale, had no statutory right to cure defaults and reinstate their residential mortgage under § 1322 and had ten days following the date of the foreclosure sale plus an additional 60 day period by operation of § 108(b) to redeem the property under applicable state law is supported by the legislative history of the amended Section 1322(c). The legislative history to Section 1322 notes that Section 1322(b)(3) and (5) of the Bankruptcy Code permit a debtor to cure defaults in connection with a Chapter 13 plan, including defaults on home mortgage loans. The legislative history further explained that the amendment overturned the Roach decision and that "all of the Federal Circuit Courts of Appeal had held that such right (to cure defaults) continues *106 at least up until the time of the foreclosure sale." After this statement in the legislative history, there is cited the cases In re Glenn, 760 F.2d 1428 (6th Cir.1985), cert. denied, 474 U.S. 849, 106 S. Ct. 144, 88 L. Ed. 2d 119 (1985), and Matter of Clark, 738 F.2d 869 (7th Cir.1984). In Glenn, the Sixth Circuit, reviewing cases involving Ohio and Michigan law, stated:
The event we choose as the cut-off date of the statutory right to cure defaults is the sale of the mortgaged premises. We pick this in preference to a number of other potential points in the progress of events ranging from the date of first default to the day the redemption period expires following sale.
760 F.2d at 1435. Similarly, in Clark, the Seventh Circuit held, in interpreting Wisconsin law, that a debtor may cure defaults after a foreclosure judgment but prior to foreclosure sale. 738 F.2d at 871.
In In re Sims, 185 B.R. 853 (Bankr. N.D.Ala.1995), the bankruptcy court interpreted Section 1322(c)(1) as adopting the date of the foreclosure sale as the termination date of the debtor's right to cure arrearages on the mortgage. The Sims Court held that the debtor lost the ability to reinstate the mortgage, decelerate the indebtedness and resume payments according to the mortgage contract's pre-default terms under § 1322(b). The Sims Court explained that, as a matter of statutory construction, legislative history will not be considered unless the language of the statute is ambiguous. Id. at 863-64 (citing United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240-41, 109 S. Ct. 1026, 1030, 103 L. Ed. 2d 290 (1989)). The Sims Court found that the phrase "until such residence is sold at a foreclosure sale" was clear and unambiguous. Id. at 864. The Sims Court, therefore, did not address conflict between the statutory language of Section 1322 and that section's legislative history. In Sims, the bankruptcy court turned to state law to determine when the property is deemed "sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law", Id. at 865-866, but noted that § 1322(c)(1) abrogated the need of courts to analyze the state property rights of the Debtor in the property to determine whether a cure is available. Id. at 866. The Sims court concluded that after foreclosure sale, the only way the debtor could "cure" the default was to exercise the statutory right of redemption through a lump sum payment which includes the principal, interest and certain other charges as mandated by Alabama state law. Id. at 866-867. See also In re Jaar, 186 B.R. 148 (Bankr. M.D.Fla.1995) (applying Florida law, holding mortgagor could no longer cure default and reinstate mortgage under § 1322(c)(1) where certificate of sale is filed by the clerk in the state court before the filing of the Chapter 13 petition); In re Smith, 85 F.3d 1555, 1561 and fn. 3 (11th Cir.1996) (applying pre-Reform Act § 1322(b) and Alabama law, holding that debtor could no longer cure default and reinstate mortgage under Chapter 13 plan following foreclosure sale and opining that result would be the same under new Section 1322(c)(1)).
The Sims court, in finding that the Reform Act had, in effect, codified cases which had adopted a "bright line" test to cut off the right to cure, noted:
In Grubbs v. Houston First Am. Savs. Ass'n, 730 F.2d 236, 241-42 n. 9 (5th Cir. 1984), the court stated:
To permit for Chapter 13 purposes, the variations of the laws of different states to govern the effect of an acceleration and its curability would be to defeat one of Congress' important purposes in exercising its preemptive bankruptcy powers under the federal Constitution, to provide by Chapter 13 a uniform national remedy by which to adjust debts of individuals with regular incomes as an alternative to their being forced to undergo liquidating bankruptcy. Along with [the Second Circuit Court of Appeals] "we do not believe that Congress labored for five years over this controversial question only to remit consumer debtors intended to be the primary beneficiaries of the new Code to harsher mercies of state law."
This Court believes that bankruptcy equity policies and state law interests are both *107 served by recognizing the foreclosure sale as the end point of the cure and reinstatement rights of debtors. All Alabama debtors, by the time of a foreclosure sale, have had ample opportunity to avail themselves of the protection of Chapter 13.
Sims, 185 B.R. at 863 (quoting In re McKinney, 174 B.R. 330, 336 (Bankr.S.D.Ala.1994)); accord In re Glenn, 760 F.2d 1428, 1435 (6th Cir.), cert. denied, 474 U.S. 849, 106 S. Ct. 144, 88 L. Ed. 2d 119 (1985).
The comments of Senator Grassley also supports this Court's finding that Congress intended that the Property would be deemed "sold" under § 1322(c)(1) at the time of the foreclosure sale:
There may be several months between the court order and the foreclosure sale. Section 301 [now § 1322(c)] will preempt conflicting State laws; and permit homeowners to prevent a plan to pay off their mortgage debt until the foreclosure sale actually occurs.
140 CONG.REC. S14462 (daily ed. Oct. 6, 1994) (floor statement of Sen. Grassley).
This Court does not believe that Congress intended to introduce such inherent uncertainty into the foreclosure process by permitting the determination as to whether a property is "sold" under New Jersey law to vary from county to county, and even within the same county, depending upon the staffing considerations in the county sheriff's office. In short, a homeowner's rights in one New Jersey county would often differ from the rights of homeowners in another New Jersey county, based solely upon administrative concerns.
This ruling is also consistent with New Jersey state law. A sheriff is merely a conduit for the delivery of a deed; the sheriff performs a ministerial function which does not affect the substantive rights of the parties under state law. In re Ross, 191 B.R. at 621; Porreca v. LaFerriere, 225 N.J.Super. 590, 591, 543 A.2d 102 (App.Div.1988) (a sheriff performs a ministerial function when he transfers a deed for recording and therefore is not liable for attendant realty transfer fee); Bankers' Trust Co. v. Maxson, 100 N.J.Eq. 1, 12, 134 A. 875 (Ch.Div.1926). There are 21 separate counties in the State of New Jersey, each of which has its own processes for delivery of deeds. Certainly Congress when it enacted Section 1322 of the Code did not envision that the rights of homeowners to cure defaults under § 1322 would depend solely upon the county in which the debtor resides.
Furthermore, under a system whereby delivery of the sheriff's deed determines whether the property is "sold" under New Jersey law, a homeowner's rights differ from one month to the next based only upon the workload and staffing considerations of the sheriff's office during any given month. This Court finds that delivery of a sheriff's deed is not the proper deadline for fixing the debtor's rights in property. The date of delivery of a sheriff's deed is capricious; it cannot be predicted by the debtor in default, the creditor or the successful purchaser. For the reasons set forth herein, this Court finds that the date of the foreclosure sale when the property is successfully bid upon is when "such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law" within the meaning of Section 1322(c)(1) and so the deadline under § 1322 for curing defaults and the last date upon which a debtor may propose to cure arrearages of the mortgage under a Chapter 13 plan.
The Debtors argue herein that the Debtors have been making their payments to the Chapter 13 trustee and are current on this obligation, and that the payments to G.E. Capital have been accepted by G.E. Capital. The Debtors assert, therefore, that the doctrine of waiver is applicable to these facts.
Waiver is the "intentional relinquishment of a known right." Paradise Hotel Corp. v. Bank of Nova Scotia, 842 F.2d 47, 51 (3d Cir.1988). The Supreme Court has held that in order to find waiver of a statutory right, "the waiver must be clear and unmistakable." Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S. Ct. 1467, 1477, 75 L. Ed. 2d 387 (1983). There is no evidence in the record of any waiver, nor a "clear and unmistakable one," and accordingly the doctrine of waiver does not apply here. See also Central Pennsylvania *108 Teamsters Pension Fund, 85 F.3d 1098, 1109 (3d Cir.1986); Evcco Leasing Corp. v. Ace Trucking Co., 828 F.2d 188, 195 (3d Cir.1987).
CONCLUSION
Considering all of the foregoing facts and circumstances, this Court holds that the foreclosed mortgage was not an interest which the debtor could have reinstated, decelerated and cured pursuant to 11 U.S.C. § 1322. While New Jersey law affords mortgagors equity of redemption, these redemption rights do not alter the fact that debtors have only up until prior to a foreclosure sale to cure defaults under a Chapter 13 plan even though they may have a longer period of time under relevant state law in which to redeem the property. The period by which the debtors could have redeemed the property under New Jersey law as extended by Section 108(b) has also expired, and Section 1322 does not revive or expand the debtors' redemption rights. Accordingly, movant is granted relief from the automatic stay to allow the Morris County sheriff to issue a deed to the successful bidder in this case.
An Order in accordance with this Opinion shall be submitted.
NOTES
[1] As noted by the Ross court: "New Jersey foreclosure law has recently been amended effective December 4, 1995, with minimal impact on the issues raised herein. See "Fair Foreclosure Act", N.J.S.A. 2A:50-53 et seq. (1995). We note that N.J.S.A. § 2A:50-64 allows the sheriff two weeks to deliver the deed after sale." 191 B.R. at 619, fn. 9.
[2] Since the hearing on this matter, the successful bidders, John E. Long and Robert Roettger have filed a motion before the Superior Court of New Jersey in connection with their purchase of the subject property to compel the Sheriff of Morris County to refund to them deposit monies in the amount of $11,000. By letter dated August 14, 1996, the Court was advised by counsel for G.E. Capital that the aforesaid motion was resolved by the execution of an assignment of the bid in favor of G.E. Capital. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2985101/ | January 9, 2014
JUDGMENT
The Fourteenth Court of Appeals
GREGORY ALLEN SMITH, Appellant
NO. 14-13-01019-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below. The
record indicates that the appeal should be DISMISSED. The Court orders the
appeal DISMISSED in accordance with its opinion.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1517927/ | 334 S.W.2d 599 (1960)
Charlotte CUTRER, Individually and Guardlan of the Estate and Person of Jeffrey Herman Cutrer, a Minor, Appellant,
v.
John Clark CUTRER, Jr., et al., Appellees.
No. 13581.
Court of Civil Appeals of Texas, San Antonio.
April 6, 1960.
Rehearing Denied April 27, 1960.
*600 Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellant.
Schweppe, Schweppe & Allison, Stahl & Sohn, San Antonio, for appellees.
BARROW, Justice.
Charlotte Cutrer as guardian of the estate of Jeffrey Hermann Cutrer, a minor, plaintiff below and appellant here, sued Ruby Henderson, guardian of the estate of John Clark Cutrer, Jr., a minor, and the National Bank of Commerce of San Antonio, defendants below and appellees here, to enforce the claim of Jeffrey Hermann Cutrer to an undivided interest in three trusts. Ruby Henderson, as guardian aforesaid, duly answered, and National Bank of Commerce of San Antonio, Trustee, answered by bill of interpleader and tendered the trust estate into court.
The trial was to the court and judgment was rendered denying completely the claim of Jeffrey Hermann Cutrer. John Clark Cutrer, Jr., will be referred to as John C. Cutrer, Jr., and his father, John Clark Cutrer, will be referred to as John C. Cutrer.
The controlling facts, as appear from appellees' brief, are as follows:
Stella Cook Herff was a settlor and plaintiff's main witness in the case. Her first marriage was to John Cutrer. Two children were born of this marriage, John Clark Cutrer and Stella Cook Cutrer. John Clark Cutrer was born on December 18, 1921.
Stella Cook Herff next married Dr. Andrew Wessels in 1932; this marriage terminated in 1950, and she is presently the wife of Dr. Ferdinand Herff.
Her daughter, Stella Cook Cutrer, married and is now Stella Cook Meyer.
Her son, John Clark Cutrer, married Barbara Lucille Steussy on June 10, 1945. They had a son, John Clark Cutrer, Jr., born on May 24, 1947. Barbara Lucille Steussy Cutrer was divorced from John Clark Cutrer on January 20, 1949 and died on January 6, 1958.
Charlotte Wessels (no relation to Dr. Andrew Wessels above), the mother of *601 Jeffrey Hermann Wessels who was born November 1, 1945, married John Clark Cutrer on May 19, 1954. John Clark Cutrer adopted Jeffrey Hermann Wessels on May 24, 1955.
John Clark Cutrer died on May 7, 1958. Ruby Henderson, the maternal grandmother of John Clark Cutrer, Jr., was appointed guardian of his estate on December 9, 1958, and said child is now in her custody.
The Three Trusts
Trust No. 53. This trust was executed by Stella Cook Wessels on December 29, 1937. Under its terms she deposited $5,000.00 with the National Bank of Commerce, as Trustee, with powers of investment. Her son, John Clark Cutrer, was named as principal beneficiary. Paragraph III provided:
"that the Trust hereby created is a gift and shall be and remain irrevocable insofar as I am concerned;"
In paragraph V, she provided for monthly payments to John Clark Cutrer,
"such monthly payments shall continue until the death of my son, John Clark Cutrer, at which time this Trust shall terminate and shall descend to his child or children, share and share alike; but should the said John Clark Cutrer die leaving no children, then this trust estate shall pass to and vest in his sister, Stella Cook Cutrer, or her surviving child or children; and in the event the said Stella Cook Cutrer predeceases her brother and leaves no issue, then this trust estate shall be paid over to some Episcopal Church of the City of San Antonio in Bexar County, Texas, to be selected by the Trustee herein."
Trust No. 79. This trust was executed by Dr. Andrew B. Wessels on May 6, 1941. He was the then husband of Stella Cook Wessels. Under its terms, he deposited $6,000.00 with the National Bank of Commerce, as Trustee. In every other respect it is word for word identical with Trust No. 53. It appears on the face of this instrument, that aside from depositing $6,000.00, instead of $5,000.00, Andrew B. Wessels merely copied the terms of Trust No. 53, executed by Stella Cook Wessels on December 29, 1937.
Trust No. 173. It appears that in 1923 F. W. Cook, the father of Stella Cook Herff, placed $10,000.00 with the San Antonio Loan & Trust Company, to be administered as a "Trust Estate." Under date of January 31, 1942, this trust estate was acknowledged to be in the sum of $22,389.19, and was carried by the San Antonio Loan & Trust Company as "Trust Estate of John Cutrer and Stella Cutrer, Minors." On that date Mrs. Stella Cook Herff, then Stella C. Wessels, joined by her then husband Andrew B. Wessels, and her children, Stella Cook Cutrer and John Clark Cutrer (only nineteen years of age) executed an instrument by the terms of which Stella Cook Wessels was to have "full, sole and exclusive control of the said fund" until her death, or January 1, 1952, whichever date shall first occur, with the right to leave the funds with San Antonio Loan & Trust Company. Upon her death, or January 1, 1952, one-half of the undisbursed fund was to belong to her son John Clark Cutrer and the other one-half to her daughter Stella Cook Cutrer.
On September 23, 1946, the same parties executed another instrument, cancelling the instrument of January 31, 1942, and acknowledging that the San Antonio Loan & Trust Company had possession of funds under an account styled "Trust Estate of John Cutrer and Stella Cutrer Meyer" (the daughter having married), with the termination date extended to January 1, 1960, or the death of Stella C. Wessels, whichever shall first occur; Stella Cook Wessels had the right to change Trustees. Paragraphs 11 and 12 of this instrument provided:
"11th: The equitable owners of the said Trust Estate are as follows: One-half *602 thereof belongs to John Cutrer, and the remaining one-half thereof belongs to Stella Cutrer Meyer. Should John Cutrer die before the `Date of the Final Disbursement,' his portion of the trust estate remaining undistributed shall thereafter belong to the heirs of his body, and should he not be survived by any heirs of his body, then his portion shall belong to Stella Cutrer Meyer. Should Stella Cutrer Meyer die before the `Date of the Final Disbursement,' her portion of the Trust Estate remaining undistributed shall thereafter belong to the heirs of her body, and should she not be survived by any heirs of her body, then her portion shall belong to John Cutrer.
"12th: Should both John Cutrer and Stella Cutrer Meyer die before the disbursement of the Trust Estate, and should neither be survived by the heirs of the body of either of them, then the equitable owners of the Trust Estate shall be Stella Cook Wessels, and should she not be living, then the equitable owners of the Trust Estate shall be the heirs of F. W. Cook."
On December 26, 1946, Stella C. Wessels exercised her authority to direct the transfer of this Trust Estate out of the possession of the San Antonio Loan & Trust Company into the possession of the National Bank of Commerce.
Trust No. 53 will be referred to as the Stella Wessels Trust; Trust No. 79, as the Andrew Wessels Trust, and Trust No. 173, as the Cook Trust.
Appellant predicates her appeal primarily upon the right of Jeffrey Hermann Cutrer, the adopted child, to participate as a remainderman in the three trusts involved in the case. Appellant contends that, having been legally adopted in May, 1955, under the provisions of Article 46a, Vernon's Ann.Civ.Stats., as amended in 1951, Jeffrey Hermann Cutrer became, under Section 9 thereof, a child of John C. Cutrer as fully as though naturally born to said parent in lawful wedlock, and that under such statute he became an heir of the body of John C. Cutrer, as applied to the trust known as Trust No. 173.
We shall first consider the Stella Wessels Trust and the Andrew Wessels Trust. Inasmuch as the provision of these two trusts are identical, we will discuss only the Stella Wessels Trust.
This trust was executed by Stella Cook Wessels, joined pro forma by her then husband, Andrew Wessels. Under the terms of this written trust she deposited in the National Bank of Commerce of San Antonio, as trustee, the sum of $5,000.00, with power of investment. Her son, John C. Cutrer, was named as principal beneficiary. The trust provided for monthly payments to him, and then provided:
"Such monthly payments shall continue until the death of my son, John Clark Cutrer, at which time this trust shall terminate and shall descend to his child or children, share and share alike * * *."
The trust instrument then provided for other alternative beneficiaries in the event her son should die leaving no children. By its terms, the trust is made irrevocable.
Appellant takes the position that because of the passage of Article 46a, § 9, Vernon's Ann.Civ.Stats., 1931 Session Laws, Ch. 177, p. 300, the adopted child, Jeffrey Hermann Cutrer, became the child of John Cutrer for every purpose, and, therefore, he became one of the beneficiaries of the Stella Cook Wessels Trust as well as the Andrew Wessels Trust. We do not agree with that contention. We believe, under the authorities construing Article 46a, § 9, the term "child or children" is not so broad as to include an adopted child when used by private persons in private transactions, unless the language used clearly indicates that the parties so intended, or is required by statutory definition. Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588, Id., Tex.Civ.App., 273 S.W.2d 893; 95 C.J.S. Wills § 653, *603 p. 954; 1 Am.Jur. 665, Adoption of Children, § 64. The rule has been stated in 95 C.J.S. Wills § 653, p. 954, as follows:
"Ordinarily, an adopted child is not actually a child of the adopting parent, and does not come within the usual meaning of `children' as used in a will to designate beneficiaries. However, whether the term `children' as so used in a will includes adopted children as well as children of the blood of the person designated depends on the intention of the testator, which must govern, and such intention is to be ascertained from the reading of the will, in the light of all the surrounding circumstances; it will not include an adopted child in the absence of circumstances clearly showing that the testator so intended, but an adopted child will be deemed included in the term when the intention of the testator is clear."
The rule has been similarly stated in 1 Am.Jur. 665, in the following language:
"In the matter of construing the rights of an adopted child to take under a will, it should be borne in mind that it is not a question of the right of an adopted child to inherit, but simply a question of the testator's intention with respect to those who are to share in his estate."
The same rules of construction are applicable to deeds and other contracts, except that in the case of deeds the instrument operates in praesenti and is construed in the light of the circumstances existing at the time of execution and delivery. 14 Tex.Jur., 911, Deeds, § 132.
We think the holding of the Supreme Court in Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588, is controlling here. In that case a joint will was executed by B. H. Murphy and wife, Anne E. Murphy, which gave a life estate to the survivor, after which it gave to each of their eight children life estates in different tracts of land with remainder to the child or children or their descendants, and provided further that if such child should leave no surviving child or descendants, then the property should pass to the other seven original remaindermen. B. H. Murphy died in 1928 and Anne E. Murphy caused the will to be probated as to his estate and accepted the benefits thereunder. In 1943, Myrtle Slaton, a daughter of B. H. and Anne E. Murphy, legally adopted a son, John O. Slaton. Mrs. Slaton died on October 12, 1950.
In 1948 Annie E. Murphy executed a codicil in which she reaffirmed the will of herself and her husband, B. H. Murphy, and in said instrument disposed of such property as had not been devised under the joint will and all property acquired by her since its execution. In 1950, Annie E. Murphy duly executed another codicil which stated that it was her desire that the adopted children of her daughters and sons share the same in the estate as if they were born to said daughters and sons. Mrs. Murphy died in 1951 and the joint will and both codicils were probated as the last will of Annie E. Murphy. The suit was brought to construe her will.
The case involved other questions not pertinent here, but, insofar as pertinent, the Court of Civil Appeals, 273 S.W.2d 893, 896, held, in effect, that the 1928 will was not contractual, and divided the entire estate into two parts. It decreed one part to those taking under the will of B. H. Murphy, and one part to those taking under the will of Annie E. Murphy as supplemented and controlled by the two codicils. As to the rights of the adopted child John O. Slaton, the Court of Civil Appeals said:
"Since John O. Slaton was adopted in 1943 and the original will of Annie E. Murphy speaks as of the date of the codicil in 1950, he would therefore take as a natural child of his deceased mother, Myrtle M. Slaton, as to the *604 estate of Annie E. Murphy. This would be true irrespective of the second codicil executed by Annie E. Murphy declaring that adopted children should have the same rights as natural children, but under such second codicil his rights would be reaffirmed as to the estate devised by Annie E. Murphy. It must be recognized that John O. Slaton's adoption in 1943, though constituting him a natural child under the will of Annie E. Murphy as executed following his adoption, could not affect his status under the will of B. H. Murphy as probated in the year 1928. He was not a `child' of Myrtle M. Slaton under such provision in the will of B. H. Murphy. This rule would also govern as to any other adopted children in so far as the estate of B. H. Murphy is concerned. Nor would the second codicil executed by Annie E. Murphy as to adopted children vary the will of B. H. Murphy and the vesting of title thereunder as to John O. Slaton or adopted children of any of the surviving seven heirs of B. H. Murphy."
The supreme Court in an opinion appearing in 273 S.W.2d 588, 597, reversed the Court of Civil Appeals, 273 S.W.2d 893, and held that the will of 1928 was contractual in nature and was binding on Annie E. Murphy. It also stated that as the Murphy children were all living at the time of B. H. Murphy's death, they each took a vested remainder in both the father's and mother's estate, subject to the mother's life estate, citing, among other authorities, Hoch v. Hoch, 140 Tex. 475, 168 S.W.2d 638, which will be thereinafter discussed. The Court then stated that "the rights of all parties to all of the property belonging to either B. H. or Annie E. Murphy, either or both, became fixed as of B. H. Murphy's death. Therefore adopted children of descendants of the Murphy `child or children or descendants of any child or children', not being included in these descriptive words, would take no part of such estate." The Court further said:
"Respondent John O. Slaton was adopted in 1943. He can take no portion of property owned at the time of B. H. Murphy's death. As to the individual property of Annie E. Murphy, both real and personal as we have defined same above, he will share in this under the 1948 codicil in accordance with the express provisions of the Annie E. Murphy codicil of August 5, 1950."
We think it is clear that the Supreme Court by this language reversed the holding of the Court of Civil Appeals that the adopted child could take under the 1948 codicil irrespective of the 1950 codicil.
It is also clear from the express language of the joint will, and particularly paragraphs 1(d) and 2, quoted in 273 S.W.2d on page 591, that if John O. Slaton had been a natural born child of Myrtle Slaton he would have participated in the entire estate of B. H. and Annie E. Murphy. Thus, we think, the Court applied the rule stated above, that the term "child or children" does not include adopted children unless the instrument clearly so provides.
In Hoch v. Hoch, 140 Tex. 475, 168 S.W.2d 638, 641, the Court had before it the claimed right of an adopted child, under the 1931 adoption statute, to administer the estate of the adoptive father under Article 3357, Vernon's Ann.Civ.Stats. The Court held that the adopted child was not entitled to the preference right as next of kin because the child had been adopted prior to the enactment of the 1931 statute, which for the first time made the adopted child the child of the adopting parents for all purposes. The Court did say that if the child had been adopted under the 1931 statute, he would have been entitled to such right because of the above specific provision, but emphasized and re-emphasized that the statute only applied "as between *605 the adopting parent and the adopted child," and not other persons.
In Spaulding v. Melch, 189 S.W.2d 639, 640, opinion by Justice Norvell, this Court held that where a parent executed a will and had no living child or children but thereafter adopted a child, such child came within the provisions of Article 8293, Vernon's Ann.Civ.Stats., and was an afterborn child within the statute. The Court cited the decision in Hoch v. Hoch, supra, wherein the Supreme Court said: "It (Article 46a, Section 9, 1931 statute) intends, as to the children adopted under it, and, as between the adopting parent and the adopted child, to create a relation in law and in fact the same as exists under our laws between natural parent and natural child." We think it evident that this was one of the rights given to the adopted child with reference to his father's estate, but is confined to the relationship between father and son by adoption, and has no relation to private instruments executed by other persons.
The words "child" or "children" have definite legal meaning when used in such instruments as contracts, deeds and wills, and do not include adopted children unless it is clear from the language used that such was the intention.
The 1951 amendment of Article 46a, Sec. 9, is not applicable to the facts in the case at bar. All of the trust instruments involved were executed long prior to 1951. The Stella Wessels and Andrew Wessels Trusts are both made irrevocable.
In construing a trust the intention of the settlor at the time of the creation of the trust is determinative. William Buchanan Foundation v. Shepperd, Tex. Civ.App., 283 S.W.2d 325; Judy v. Trollingor, 110 Ohio St. 576, 144 N.E. 44; Trowbridge v. Trowbridge, 294 N.Y. 785, 62 N.E.2d 232. "From the very nature of an inter vivos trust it must so speak. In order for a trust to be a trust, the legal title of the res must immediately pass to the trustee, and beneficial or equitable interest to the beneficiaries." First National Bank of Cincinnati v. Tenney, 165 Ohio St. 513, 138 N.E.2d 15, 18, 61 A.L.R. 2d 476. For a case squarely in point see, Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621.
We come to the trust executed by Mrs. Wessels, joined pro forma by her husband, Andrew Wessels, and by her children John C. Cutrer and Stella Cutrer Meyer. The equitable owners of the trust estate were John C. Cutrer and Stella Cutrer Meyer, one-half thereof belonging to each of the two children. The instrument provided that should John C. Cutrer die before the date of final disbursement, "his portion of the Trust Estate remaining undistributed shall thereafter belong to the heirs of his body, and should he not be survived by any heirs of his body, then his portion shall belong to Stella Cutrer Meyer." Then follow provisions not pertinent here.
This trust was originally created in 1929 by F. W. Cook, father of Stella Cook Wessels, by a deposit of the sum of $10,000.00 in the San Antonio Loan & Trust Company, to be administered as a trust estate with John C. Cutrer and Stella Cutrer, minors, as beneficiaries, and was so acknowledged by all the parties by the instrument dated January, 1942. The 1946 instrument superseded and controlled the 1942 instrument.
At the time of the execution of the 1946 instrument, John C. Cutrer was married but had no children. In 1947 John C. Cutrer, Jr., his only child was born. In 1949, John C. Cutrer and his wife, the mother of John C. Cutrer, Jr., were divorced and the custody of the child was awarded to the wife, Barbara Cutrer. In 1954, John Cutrer was married to the natural mother of Jeffrey Hermann and in 1955 he adopted the child, and the decree provided that he should be known as Jeffery Hermann Cutrer. John C. Cutrer died May 7, 1958. *606 His son and adopted son, both survived him.
Appellant contends that by virtue of the adoption statute, Art. 46a, Sec. 9, the adopted child, Jeffrey Hermann Cutrer, comes within the class named to take under the instrument, and relies strongly on the decision in Hoch v. Hoch, supra, wherein the Court said that the adoption decree intends to create a relationship in law and in fact, the same as exists under our laws between natural parent and natural child. We do not agree with appellant's contention. Such expressions as "heirs of the body," and "bodily heirs," have a legal meaning. While no Texas cases have been cited, and we have found none in point, these expressions have been construed on many occasions, and we think it is well established that an adopted child is the child of the adopting parents by law and not by birth. The adoption does not make a child heirs of the body of the adopting parents. Even though an adopted child has a status in law with respect to the adoptive parents identical to that of a child born of such parents, it does not follow that such status is determinative in construing a will, contract, deed, or other private instrument. Barton v. Campbell, 245 N.C. 395, 95 S.E.2d 914; Adams v. Merrill, 45 Ind.App. 315, 85 N.E. 114; In re Pierce's Estate, 32 Cal. 2d 265, 196 P.2d 1; In re Miller's Trust, 133 Mont. 354, 323 P.2d 885. The term heirs of the body, in its commonly accepted sense, means issue of the body, offspring, progeny, natural children, physically born and begotten by the person named as parent. An adopted child is the issue of his natural parents and not of his adopted ones. In re Millers' Trust, supra. The expression "heirs of the body" is a restrictive term, as compared with the term "heirs" generally, or with the term "child or children,' and when used in such instruments it must be construed to mean and include only children actually begotten and born of the parents in question.
By appellant's third point it is contended that the court erred in refusing to consider extrinsic evidence to determine the intent of the settlors. This point is overruled. The trust instruments are clear, certain and unambiguous with respect to the beneficiaries named therein as a class, and by clear and unambiguous language adopted children are excluded. Furthermore, the trial court did permit the parties to introduce such evidence of the facts and circumstances surrounding the transaction and the relationship of the parties as they desired. We have carefully examined the testimony and find no evidence which would tend to show that the settlors had any intention other than that disclosed by the language of the instruments.
Appellant's fourth point urges that the court erred in refusing to consider testimony of the declarations of settlors now deceased, to determine their intent. And in the fifth point it is contended that the court erred in refusing to consider testimony of a living settlor to determine her intent. These points must be overruled.
It appears from the record that appellant sought to have Mrs. Stella Cook Herff (formerly Mrs. Stella Cook Wessels) testify that it was her intention that Jeffrey Hermann Cutrer, the child adopted in 1955, should participate in each of the trusts as a child of and as an heir of the body of her son, John C. Cutrer. Appellant also sought to prove by her that she had conversations with her former husband, Andrew Wessels, and her son, John C. Cutrer, and that each of them had expressed to her a like intention. The trial court's ruling in excluding this testimony is correct.
The cardinal rule in construing written instruments is to ascertain and give effect to the intention of the parties, as expressed in the language used by them. The instrument will be enforced as written, no matter what the actual intention of *607 the parties may have been, in the absence of a showing of fraud, accident or mistake. 10 Tex.Jur. pp. 274, 275, 276, § 160. When the parties have reduced their agreement to writing, it is taken to be the final expression of their intention. 14B Tex.Jur. 583, § 134. In construing a deed the question is not what the parties meant to say, but the meaning of what they did say. Sims v. Woods, Tex.Civ.App., 267 S.W.2d 571. If the parties had a particular intention, but the provisions of the deed expressed another or different intention, the only remedy, if any, would be the voidance or reformation of the deed. Stewart v. McKee, Tex.Civ.App., 150 S.W.2d 415. In this case appellant does not seek to reform the instruments, and does not plead nor seek to prove that by reason of either fraud, accident or mistake, the instruments were not drawn or worded according to the wishes of the parties thereto, but seeks to engraft on the instruments undisclosed intentions of such parties. The court did not err in excluding that testimony.
Finding no error, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1639906/ | 365 N.W.2d 844 (1985)
219 Neb. 740
STATE of Nebraska, Appellee,
v.
Jimmy L. WILEY, also known as Jimmy L. Brooks, Appellant.
No. 84-687.
Supreme Court of Nebraska.
April 12, 1985.
*845 Thomas M. Kenney, Douglas County Public Defender, and Bennett G. Hornstein, Omaha, for appellant.
Paul L. Douglas, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.
KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
WHITE, Justice.
In exchange for the dismissal of an additional charge, the appellant, Jimmy L. Wiley, also known as Jimmy L. Brooks, entered a plea of guilty to a violation of Neb.Rev.Stat. § 28-611(1)(a) (Cum.Supp. 1984), issuance of a check for an amount in excess of $1,000 and obtaining "property, service, or present value," knowing that he did not have sufficient funds or credit with the drawee bank for the payment in full upon presentation. Appellant was found guilty and sentenced to a term of 18 months to 3 years' imprisonment, with credit for time served in jail awaiting trial. A violation of § 28-611(1)(a) is a Class III felony, which carries a sentence ranging from 1 to 20 years' imprisonment, a $25,000 fine, or both. This appeal followed.
Only one error is assignedthat an insufficient factual basis existed for the acceptance of a plea of guilty to a Class III felony. The following facts elicited by the court at arraignment and as shown in the presentence investigation report will serve to highlight the contention of the appellant.
On May 2, 1984, the appellant negotiated the purchase of 27 bookcases for the Universal Bethel Baptist Church at 8017 Farnam Drive in Omaha, Nebraska, from the Unpainted Furniture Center in Omaha, for a price of $3,238.65. Appellant issued a check to the store for $3,386.65. Appellant received the difference of $148 in cash. The owner of the store became suspicious and, upon investigation, learned that the drawee bank account in Milwaukee was closed. The owner of the store conveyed this information to the Omaha Police Department, and the appellant was arrested the following day. It was determined that 8017 Farnam was a fictitious address for a nonexistent church.
Appellant's argument, simply stated, is that the statute should be construed as to punish the offender for the amount the drawer actually has obtained from the payee in a fraudulent scheme. Appellant suggests that the record would strongly indicate that he never intended to take possession of the 27 bookcases nor would the furniture store likely have delivered the bookcases to 8017 Farnam Drive when no such address existed.
There are only two flaws in the appellant's argument. First, the statute is absolutely clear that the essential elements of the crime are the issuance of a check for more than $1,000 and the obtaining of property of value, with no particular amount *846 required (subject, of course, to the requirement that the act is done with the intent to defraud). State v. Suhr, 207 Neb. 553, 300 N.W.2d 25 (1980). We are not free to change the language of a plain and unambiguous statute. State v. Suhr, supra; State v. Havorka, 218 Neb. 367, 355 N.W.2d 343 (1984).
Second, the appellant having pled guilty and admitted the essential elements of the offense is not now free to change that admission here. State v. Jones, 214 Neb. 145, 332 N.W.2d 702 (1983).
No error having been found, the judgment is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1640309/ | 923 S.W.2d 575 (1996)
Leroy BARCELO, III, Terri Jo Barcelo, Cecil Wayne Barcelo, Jr., Christopher Lee Barcelo, and Frances Michelle Barcelo Schock, Petitioners,
v.
David J. ELLIOTT and Eikenburg & Stiles, P.C., Respondents.
No. 95-0341.
Supreme Court of Texas.
May 10, 1996.
Rehearing Overruled July 8, 1996.
*576 Gary L. McConnell, Angleton, for petitioners.
Sam W. Cruse, Jr., Billy Shepherd, John P. Scott, Houston, for respondents.
PHILLIPS, Chief Justice, delivered the opinion of the Court, in which GONZALEZ, HECHT, ENOCH, and BAKER, Justices, joined.
The issue presented is whether an attorney who negligently drafts a will or trust agreement owes a duty of care to persons intended to benefit under the will or trust, even though the attorney never represented the intended beneficiaries. The court of appeals held that the attorney owed no duty to the beneficiaries, affirming the trial court's summary judgment for the defendant-attorney. ___ S.W.2d ___, 1995 WL 51054. Because the attorney did not represent the beneficiaries, we likewise conclude that he owed no professional duty to them. We accordingly affirm the judgment of the court of appeals.
I
After Frances Barcelo retained attorney David Elliott to assist her with estate planning, Elliott drafted a will and inter vivos trust agreement for her. The will provided for specific bequests to Barcelo's children, devising the residuary of her estate to the inter vivos trust. Under the trust agreement, trust income was to be distributed to Barcelo during her lifetime. Upon her death, the trust was to terminate, assets were to be distributed in specific amounts to Barcelo's children and siblings, and the remainder was to pass to Barcelo's six grandchildren. The trust agreement contemplated that the trust would be funded by cash and shares of stock during Barcelo's lifetime, although the grandchildren contend that this never occurred. Barcelo signed the will and trust agreement in September 1990.
Barcelo died on January 22, 1991. After two of her children contested the validity of the trust, the probate court, for reasons not disclosed on the record before us, declared the trust to be invalid and unenforceable. Barcelo's grandchildrenthe intended remainder beneficiaries under the trustsubsequently agreed to settle for what they contend was a substantially smaller share of the estate than what they would have received pursuant to a valid trust.
Barcelo's grandchildren then filed the present malpractice action against Elliott and his law firm (collectively "Elliott"). Plaintiffs allege that Elliott's negligence caused the trust to be invalid, resulting in foreseeable injury to the plaintiffs.[1] Elliott moved for *577 summary judgment on the sole ground that he owed no professional duty to the grandchildren because he had never represented them. The trial court granted Elliott's motion for summary judgment.
The court of appeals affirmed, concluding that under Texas law an attorney preparing estate planning documents owes a duty only to his or her clientthe testator or trust settlornot to third parties intended to benefit under the estate plan. ___ S.W.2d at ___.
II
The sole issue presented is whether Elliott owes a duty to the grandchildren that could give rise to malpractice liability even though he represented only Frances Barcelo, not the grandchildren, in preparing and implementing the estate plan.
A
At common law, an attorney owes a duty of care only to his or her client, not to third parties who may have been damaged by the attorney's negligent representation of the client. See Savings Bank v. Ward, 100 U.S. 195, 200, 25 L. Ed. 621 (1879); Annotation, Attorney's Liability, to One Other Than Immediate Client, for Negligence in Connection with Legal Duties, 61 A.L.R. 4th 615, 624 (1988). Without this "privity barrier," the rationale goes, clients would lose control over the attorney-client relationship, and attorneys would be subject to almost unlimited liability. See Helen Jenkins, PrivityA Texas-Size Barrier to Third Parties for Negligent Will DraftingAn Assessment and Proposal, 42 Baylor L.Rev. 687, 689-90 (1990). Texas courts of appeals have uniformly applied the privity barrier in the estate planning context. See Thomas v. Pryor, 847 S.W.2d 303, 304-05 (Tex.App.Dallas 1992), judgm't vacated by agr., 863 S.W.2d 462 (Tex.1993); Dickey v. Jansen, 731 S.W.2d 581, 582-83 (Tex.App.Houston [1st Dist.] 1987, writ ref'd n.r.e.); Berry v. Dodson, Nunley & Taylor, 717 S.W.2d 716, 718-19 (Tex.App.San Antonio 1986), judgm't vacated by agr., 729 S.W.2d 690 (Tex.1987).
Plaintiffs argue, however, that recognizing a limited exception to the privity barrier as to lawyers who negligently draft a will or trust would not thwart the rule's underlying rationales. They contend that the attorney should owe a duty of care to persons who were specific, intended beneficiaries of the estate plan. We disagree.
B
The majority of other states addressing this issue have relaxed the privity barrier in the estate planning context. See Lucas v. Hamm, 56 Cal. 2d 583, 15 Cal. Rptr. 821, 825, 364 P.2d 685, 689 (1961), cert. denied, 368 U.S. 987, 82 S. Ct. 603, 7 L. Ed. 2d 525 (1962); Stowe v. Smith, 184 Conn. 194, 441 A.2d 81, 83 (1981); Needham v. Hamilton, 459 A.2d 1060, 1062 (D.C.1983); DeMaris v. Asti, 426 So. 2d 1153, 1154 (Fla.Dist.Ct.App.1983); Ogle v. Fuiten, 102 Ill. 2d 356, 80 Ill. Dec. 772, 774-75, 466 N.E.2d 224, 226-27 (1984); Walker v. Lawson, 526 N.E.2d 968, 968 (Ind. 1988); Schreiner v. Scoville, 410 N.W.2d 679, 682 (Iowa 1987); Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, 51 (1990); In re Killingsworth, 292 So. 2d 536, 542 (La.1973); Hale v. Groce, 304 Or. 281, 744 P.2d 1289, 1292-93 (1987); Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744, 751-53 (1983); Auric v. Continental Cas. Co., 111 Wis. 2d 507, 331 N.W.2d 325, 327 (1983). But see Lilyhorn v. Dier, 214 Neb. 728, 335 N.W.2d 554, 555 (1983); Viscardi v. Lerner, 125 A.D.2d 662, 510 N.Y.S.2d 183, 185 (1986); Simon v. Zipperstein, 32 Ohio St. 3d 74, 512 N.E.2d 636, 638 (1987).
While some of these states have allowed a broad cause of action by those claiming to be intended beneficiaries, see Stowe, 441 A.2d at 84; Ogle, 80 Ill.Dec. at 775, 466 N.E.2d at 227; Hale, 744 P.2d at 1293, others have limited the class of plaintiffs to beneficiaries *578 specifically identified in an invalid will or trust. See Ventura County Humane Society v. Holloway, 40 Cal. App. 3d 897, 115 Cal. Rptr. 464, 468 (1974); DeMaris, 426 So.2d at 1154; Schreiner, 410 N.W.2d at 683; Kirgan v. Parks, 60 Md.App. 1, 478 A.2d 713, 718-19 (1984) (holding that, if cause of action exists, it does not extend to situation where testator's intent as expressed in the will has been carried out); Ginther v. Zimmerman, 195 Mich.App. 647, 491 N.W.2d 282, 286 (1992) (same); Guy, 459 A.2d at 751-52. The Supreme Court of Iowa, for example, held that
a cause of action ordinarily will arise only when as a direct result of the lawyer's professional negligence the testator's intent as expressed in the testamentary instruments is frustrated in whole or in part and the beneficiary's interest in the estate is either lost, diminished, or unrealized.
Schreiner v. Scoville, 410 N.W.2d 679, 683 (Iowa 1987).
C
We agree with those courts that have rejected a broad cause of action in favor of beneficiaries. These courts have recognized the inevitable problems with disappointed heirs attempting to prove that the defendant-attorney failed to implement the deceased testator's intentions. Certainly allowing extrinsic evidence would create a host of difficulties. In DeMaris v. Asti, 426 So. 2d 1153, 1154 (Fla.Dist.Ct.App.1983), for example, the court concluded that "[t]here is no authoritythe reasons being obviousfor the proposition that a disappointed beneficiary may prove, by evidence totally extrinsic to the will, the testator's testamentary intent was other than as expressed in his solemn and properly executed will." Such a cause of action would subject attorneys to suits by heirs who simply did not receive what they believed to be their due share under the will or trust. This potential tort liability to third parties would create a conflict during the estate planning process, dividing the attorney's loyalty between his or her client and the third-party beneficiaries.
Moreover, we believe that the more limited cause of action recognized by several jurisdictions also undermines the policy rationales supporting the privity rule. These courts have limited the cause of action to beneficiaries specifically identified in an invalid will or trust. Under these circumstances, courts have reasoned, the interests of the client and the beneficiaries are necessarily aligned, negating any conflict, as the attorney owes a duty only to those parties which the testator clearly intended to benefit. See, e.g., Needham, 459 A.2d at 1062.
In most cases where a defect renders a will or trust invalid, however, there are concomitant questions as to the true intentions of the testator. Suppose, for example, that a properly drafted will is simply not executed at the time of the testator's death. The document may express the testator's true intentions, lacking signatures solely because of the attorney's negligent delay. On the other hand, the testator may have postponed execution because of second thoughts regarding the distribution scheme. In the latter situation, the attorney's representation of the testator will likely be affected if he or she knows that the existence of an unexecuted will may create malpractice liability if the testator unexpectedly dies.
The present case is indicative of the conflicts that could arise. Plaintiffs contend in part that Elliott was negligent in failing to fund the trust during Barcelo's lifetime, and in failing to obtain a signature from the trustee. These alleged deficiencies, however, could have existed pursuant to Barcelo's instructions, which may have been based on advice from her attorneys attempting to represent her best interests. An attorney's ability to render such advice would be severely compromised if the advice could be second-guessed by persons named as beneficiaries under the unconsummated trust.
In sum, we are unable to craft a bright-line rule that allows a lawsuit to proceed where alleged malpractice causes a will or trust to fail in a manner that casts no real doubt on the testator's intentions, while prohibiting actions in other situations. We believe the greater good is served by preserving a bright-line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent. This will ensure that attorneys may in all cases zealously represent *579 their clients without the threat of suit from third parties compromising that representation.
We therefore hold that an attorney retained by a testator or settlor to draft a will or trust owes no professional duty of care to persons named as beneficiaries under the will or trust.[2]
D
Plaintiffs also contend that, even if there is no tort duty extending to beneficiaries of an estate plan, they may recover under a third-party-beneficiary contract theory. While the majority of jurisdictions that have recognized a cause of action in favor of will or trust beneficiaries have done so under negligence principles,[3] some have allowed recovery in contract.[4]
In Texas, however, a legal malpractice action sounds in tort and is governed by negligence principles. See Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989); Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988). Cf. Heyer v. Flaig, 70 Cal. 2d 223, 74 Cal. Rptr. 225, 228, 449 P.2d 161, 164 (1969) (recognizing that third-party-beneficiary contract theory "is conceptually superfluous since the crux of the action must lie in tort in any case; there can be no recovery without negligence"). Even assuming that a client who retains a lawyer to draft an estate plan intends for the lawyer's work to benefit the will or trust beneficiaries, the ultimate question is whether, considering the competing policy implications, the lawyer's professional duty should extend to persons whom the lawyer never represented. For the reasons previously discussed, we conclude that the answer is no.
For the foregoing reasons, we affirm the judgment of the court of appeals.
OWEN, J., did not participate in the decision.
CORNYN, Justice, joined by ABBOTT, Justice, dissenting.
With an obscure reference to "the greater good," 923 S.W.2d at 578, the Court unjustifiably insulates an entire class of negligent lawyers from the consequences of their wrongdoing, and unjustly denies legal recourse to the grandchildren for whose benefit Ms. Barcelo hired a lawyer in the first place. I dissent.
By refusing to recognize a lawyer's duty to beneficiaries of a will, the Court embraces a rule recognized in only four states,[1] while simultaneously rejecting the rule in an overwhelming majority of jurisdictions.[2] Notwithstanding *580 the fact that in recent years the Court has sought to align itself with the mainstream of American jurisprudence,[3] the Court inexplicably balks in this case.
The threshold question in a negligence action, including a legal malpractice suit, is duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); see Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989) (holding that a legal malpractice action in Texas is grounded in negligence). Whether a defendant owes a duty to the plaintiff depends on several factors, including risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury, and the consequences of placing the burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).
The foreseeability of harm in this case is not open to serious question. Because Ms. Barcelo hired Mr. Elliott to accomplish the transfer of her estate to her grandchildren upon her death, the potential harm to the beneficiaries if the testamentary documents were incorrectly drafted was plainly foreseeable. See Lucas, 15 Cal.Rptr. at 824, 364 P.2d at 688; see also Heyer v. Flaig, 70 Cal. 2d 223, 74 Cal. Rptr. 225, 228, 449 P.2d 161, 164-65 (1969) ("The attorney's actions and omissions will affect the success of the client's testamentary scheme; and thus the possibility of thwarting the testator's wishes immediately becomes foreseeable. Equally foreseeable is the possibility of injury to an intended beneficiary."). Foreseeability of harm weighs heavily in favor of recognizing a duty to intended beneficiaries.
Additionally, the Court's decision means that, as a practical matter, no one has the right to sue for the lawyer's negligent frustration of the testator's intent. A flaw in a will or other testamentary document is not likely be discovered until the client's death. And, generally, the estate suffers no harm from a negligently drafted testamentary document. Heyer, 74 Cal.Rptr. at 228, 449 P.2d at 165. Allowing beneficiaries to sue would provide accountability and thus an incentive for lawyers to use greater care in estate planning. Robert L. Rabin, Tort Recovery for Negligently Inflicted Economic Loss, 37 Stan.L.Rev. 1513, 1521 (1985). Instead, the Court decides that an innocent party must bear the burden of the lawyer's error. The Court also gives no consideration to the fair adjustment of the loss between the parties, one of the traditional objectives of tort law. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 4, at 24-25 (5th ed. 1984); Robert E. Litan et al., The U.S. Liability System: Background and Trends, in LIABILITY: PERSPECTIVES AND POLICY 1, 3 (Robert E. Litan and Clifford Winston eds., 1988). These grounds for the imposition of a legal duty in tort law generally, which apply to lawyers in every other context, are no less important in estate planning.
Nor do the reasons the Court gives for refusing to impose a duty under these circumstances *581 withstand scrutiny. Contrary to the Court's view, recognizing an action by the intended beneficiaries would not extend a lawyer's duty to the general public, but only to a limited, foreseeable class. Because estate planning attorneys generally do not face any liability in this context, potential liability to the intended beneficiaries would not place them in a worse position than attorneys in any other setting.
The Court also hypothesizes that liability to estate beneficiaries may conflict with the attorney's duty to the client. Before the beneficiaries could prevail in a suit against the attorney, however, they would necessarily have to show that the attorney breached a duty to the decedent. This is because the lawyer's duty to the client is to see that the client's intentions are realized by the very documents the client has hired the lawyer to draft. No conflicting duty to the beneficiaries is imposed.
Searching for other hypothetical problems that might arise if a cause of action for the beneficiaries is recognized, the Court observes that a will not executed at the testator's death could in fact express the testator's true intentions. 923 S.W.2d at 578. Granted, such a scenario may be the result of either the testator's indecision or the attorney's negligence. Similarly, a family member might be intentionally omitted from a will at the testator's direction, or negligently omitted because of the drafting lawyer's mistake. In other words, what appears to be attorney negligence may actually reflect the testator's wishes.
But surely these are matters subject to proof, as in all other cases. Nothing distinguishes this class of cases from many others in this respect. The Court fails to consider that the beneficiaries will in each case bear the burden of establishing that the attorney breached a duty to the testator, which resulted in damages to the beneficiaries. Lawyers, wishing to protect themselves from liability, may document the testator's intentions.
In addition, Elliott suggests that allowing beneficiaries to sue the testator's attorney would interfere with the attorney-client privilege, by either encouraging attorneys to violate clients' confidences or by hindering attorneys' ability to defend their actions. This concern, too, is unfounded. Under Texas law, the attorney-client privilege does not survive the testator. Krumb v. Porter, 152 S.W.2d 495, 497 (Tex.Civ.App.San Antonio 1941, writ ref'd); see Thomas v. Pryor, 847 S.W.2d 303, 305 (Tex.App.Dallas 1992), writ granted and case remanded pursuant to settlement, 863 S.W.2d 462 (Tex.1993); see also Stappas v. Stappas, 271 Ala. 138, 122 So. 2d 393, 396 (1960); Denver Nat'l Bank v. McLagan, 133 Colo. 487, 298 P.2d 386, 388 (1956); Manley v. Combs, 197 Ga. 768, 30 S.E.2d 485, 493 (1944); 1 McCormick on Evidence § 94 (4th ed. 1992); 8 JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 2314 (3d ed. 1940). This is because the lawyer-client privilege applies only to confidential communications, which are "not intended to be disclosed to third persons." TEX.R.CIV.EVID. 503(a)(5). And, as Professor Wigmore has explained, "[a]s to the tenor and execution of the will, it seems hardly open to dispute that they are the very facts which the testator expected and intended to be disclosed after his death." Wigmore § 2314, at 613 (emphasis in original).
In sum, I would hold that the intended beneficiary of a will or testamentary trust may bring a cause of action against an attorney whose negligence caused the beneficiary to lose a legacy in whole or in part. Accordingly, I would reverse the judgment of the court of appeals and remand this case to the trial court.
SPECTOR, Justice, dissenting.
The issue in this case is whether the attorney, David Elliott, owed a duty to Frances Barcelo's intended beneficiaries. The majority holds that he did not. The other dissenting justices would recognize a broad cause of action in favor of any person claiming to be an intended beneficiary, regardless of whether the plaintiff is identified in the will or trust instrument. Because I would recognize only a limited cause of action for the intended beneficiaries of wills and trusts, I write separately to dissent.
At common law, an attorney owes no duty to third parties who may have been damaged by the attorney's negligent representation of *582 the attorney's client. See Savings Bank v. Ward, 100 U.S. 195, 25 L. Ed. 621 (1879). As the majority notes, although Texas courts of appeals have consistently accepted this restriction in the estate planning context, most other states addressing this issue have lowered the privity barrier in this area. See Lucas v. Hamm, 56 Cal. 2d 583, 15 Cal. Rptr. 821, 825, 364 P.2d 685, 689 (1961), cert. denied, 368 U.S. 987, 82 S. Ct. 603, 7 L. Ed. 2d 525 (1962); Stowe v. Smith, 184 Conn. 194, 441 A.2d 81, 83 (1981); Needham v. Hamilton, 459 A.2d 1060, 1062 (D.C.1983); DeMaris v. Asti, 426 So. 2d 1153, 1154 (Fla.Dist.Ct. App.1983); Ogle v. Fuiten, 102 Ill. 2d 356, 80 Ill. Dec. 772, 774-75, 466 N.E.2d 224, 226-27 (1984); Walker v. Lawson, 526 N.E.2d 968, 968 (Ind.1988); Schreiner v. Scoville, 410 N.W.2d 679, 682 (Iowa 1987); Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, 51 (1990); In re Killingsworth, 292 So. 2d 536, 542 (La. 1973); Hale v. Groce, 304 Or. 281, 744 P.2d 1289, 1292-93 (1987); Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744, 751-53 (1983); Auric v. Continental Cas. Co., 111 Wis. 2d 507, 331 N.W.2d 325, 327 (1983).
I believe that recognizing such a cause of action would further public policy by requiring attorneys to exercise due care in implementing a testator's estate plan. Under current law, only the attorney's client has standing to sue for negligent preparation of the will or trust. Although the testator's personal representative would succeed to this cause of action upon the testator's death, the estate itself may suffer no damage from an invalid will or trust that frustrates the testator's intentions. See Heyer v. Flaig, 70 Cal. 2d 223, 74 Cal. Rptr. 225, 228, 449 P.2d 161, 165 (1969); Guy, 459 A.2d at 749. Consequently, an attorney who negligently drafts a will or trust that is discovered to be invalid after the testator's death is accountable to no one.
I would not go so far as to hold that attorneys who draft wills and trusts have a duty to persons who are not beneficiaries named in the will or trust. Recognizing such a broad cause of action is as likely to frustrate the testator's intent as it is to carry it out. I would, however, allow beneficiaries who are specifically identified on the face of an invalid will or trust to assert a claim.
Recognizing a limited cause of action would subject attorneys who prepare wills and trusts documents to the same standard of care governing attorneys generally. Because I believe that this is sound public policy, I dissent.
NOTES
[1] The plaintiffs alleged that Elliott acted negligently when he:
A. provided in the trust agreement that it would not be effective until signed by the trustee, designated to be First City Bank of Houston, and then failed to obtain the execution of the trust document by the trustee;
B. drafted Mrs. Barcelo's will so as to provide that the residuary of her estate would pass into the trust he sought to create for Mrs. Barcelo, and then provided in the trust agreement that the trust would terminate upon Mrs. Barcelo's death, leaving her residuary to pass by intestacy to her children instead of her six grandchildren, including Plaintiffs, as provided in the trust agreement; and
C. failed to take the necessary steps on behalf of Mrs. Barcelo to fund the trust with the shares of stock....
[2] We express no opinion as to whether the beneficiary of a trust has standing to sue an attorney representing the trustee for malpractice. Cf. Thompson v. Vinson & Elkins, 859 S.W.2d 617, 621-23 (Tex.App.Houston [1st Dist.] 1993, writ denied) (holding that beneficiary lacked standing to sue trustee's attorney).
[3] See Heyer v. Flaig, 70 Cal. 2d 223, 74 Cal. Rptr. 225, 228, 449 P.2d 161, 164 (1969); Needham, 459 A.2d at 1062; DeMaris, 426 So.2d at 1154; Schreiner, 410 N.W.2d at 682; Pizel, 795 P.2d at 51; Auric, 331 N.W.2d at 329.
[4] See Stowe, 441 A.2d at 83; Killingsworth, 292 So.2d at 542; Guy, 459 A.2d at 751-52. Other states have recognized a cause of action under both negligence and contract. See Ogle, 80 Ill. Dec. at 775, 466 N.E.2d at 227; Hale, 744 P.2d at 1292.
[1] See Williams v. Bryan, Cave, McPheeters & McRoberts, 774 S.W.2d 847, 849 (Mo.Ct.App. 1989); St. Mary's Church v. Tomek, 212 Neb. 728, 325 N.W.2d 164, 165 (1982); Viscardi v. Lerner, 125 A.D.2d 662, 510 N.Y.S.2d 183, 185 (1986); Simon v. Zipperstein, 32 Ohio St. 3d 74, 512 N.E.2d 636, 638 (1987).
[2] See Rathblott v. Levin, 697 F. Supp. 817, 819-20 (D.N.J.1988) (applying New Jersey law); Wisdom v. Neal, 568 F. Supp. 4, 8 (D.N.M.1982) (applying New Mexico law); Lucas v. Hamm, 56 Cal. 2d 583, 15 Cal. Rptr. 821, 824, 364 P.2d 685, 688 (1961), cert. denied, 368 U.S. 987, 82 S. Ct. 603, 7 L. Ed. 2d 525 (1962); Stowe v. Smith, 184 Conn. 194, 441 A.2d 81, 83-84 (1981); Needham v. Hamilton, 459 A.2d 1060, 1062 (D.C.1983); Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So. 2d 315, 317 (Fla.Dist.Ct.App. 1985); Ogle v. Fuiten, 102 Ill. 2d 356, 80 Ill. Dec. 772, 775, 466 N.E.2d 224, 227 (1984); Walker v. Lawson, 514 N.E.2d 629, 633 (Ind.Ct.App.1987); Schreiner v. Scoville, 410 N.W.2d 679, 682 (Iowa 1987); Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, 51 (1990); Succession of Killingsworth, 292 So. 2d 536, 542 (La.1973); Mieras v. DeBona, 204 Mich.App. 703, 516 N.W.2d 154, 157 (1994); Simpson v. Calivas, 139 N.H. 1, 650 A.2d 318, 322-23 (1994); Hale v. Groce, 304 Or. 281, 744 P.2d 1289, 1292 (1987); Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744, 746 (1983); Trask v. Butler, 123 Wash.2d 835, 872 P.2d 1080, 1084 (1994); Auric v. Continental Casualty Co., 111 Wis. 2d 507, 331 N.W.2d 325, 327 (1983). See also Restatement (Third) of the Law Governing Lawyers § 73(3) & cmt. f, illus. 2 (Tentative Draft No. 7, 1994) (recognizing lawyer's duty to a will beneficiary and stating that lawyer has duty to nonclient when lawyer "knows that a client intends the lawyer's services to benefit the non-client, and such a duty substantially promotes enforcement of the lawyer's obligations to the client and would not create inconsistent duties").
[3] See, e.g., In re Humphreys, 880 S.W.2d 402, 407-08 (Tex.1994) (holding that willful tax evasion is a crime involving moral turpitude); National County Mut. Fire Ins. Co. v. Johnson, 879 S.W.2d 1, 3-4 (Tex.1993) (holding that family member exclusions in automobile insurance contracts are invalid); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 755-56 (Tex.1993) (holding that commencement of a lawsuit by an incapacitated person, considered alone, is insufficient to deny tolling of statute of limitations); Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex.1993) (recognizing cause of action for intentional infliction of emotional distress); Association of Texas Professional Educators v. Kirby, 788 S.W.2d 827, 829-30 (Tex.1990) (recognizing a narrow exception to the enrolled bill rule); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 353-54 (Tex.1990) (holding that discovery rule does not apply when statute specifically provides accrual date for cause of action); Willis v. Maverick, 760 S.W.2d 642, 646-47 (Tex.1988) (holding that the discovery rule applies to legal malpractice actions); Spring Branch I.S.D. v. Stamos, 695 S.W.2d 556, 559-60 (Tex.1985) (holding that a student's right to participate in extracurricular activities is not a fundamental constitutional right). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1537613/ | 167 Conn. 260 (1974)
STATE OF CONNECTICUT
v.
EUGENE COLEMAN
Supreme Court of Connecticut.
Argued April 3, 1974.
Decision released October 22, 1974.
HOUSE, C. J., SHAPIRO, LOISELLE, MACDONALD and BOGDANSKI, JS.
*261 M. J. Daly III, special public defender, for the appellant (defendant).
Walter H. Scanlon, assistant state's attorney, for the appellee (state).
HOUSE, C. J.
On a trial to a jury the defendant was found guilty of attempting to obtain money by false pretenses in violation of General Statutes § 53-360 (repealed by Public Acts 1969, No. 828, effective October 1, 1971). In pertinent part, this statute provided for a penalty for any person "who, by any false token, pretense or device, obtains from another any valuable thing ... with intent to defraud him or any other person." The defendant has appealed from the judgment rendered on the verdict. Of his four assignments of error, he has briefed three and the fourth is considered *262 to have been abandoned. State v. Croom, 166 Conn. 226, 232, 348 A.2d 556; State v. Beaulieu, 164 Conn. 620, 621, 325 A.2d 263. The assignments of error which he has pressed on appeal are that the court erred (1) in denying his motion to set aside the verdict as contrary to the law and the evidence, (2) in denying his motion to dismiss the information, and (3) in admitting in evidence a check and a driver's license.
We consider first the claim of the defendant that the court erred in denying his motion to set aside the verdict in that it was contrary to the law and not supported by the evidence. Whether the evidence supports the verdict is tested by the summary of the evidence as printed in the appendices to the briefs. State v. Siberon, 166 Conn. 455, 456, 352 A.2d 285; State v. Hall, 165 Conn. 599, 601, 345 A.2d 17. There was evidence from which the jury could find the following pertinent facts: About 7:30 p.m. on August 15, 1970, Coleman met James H. Lee, an illiterate person, on the street in Waterbury and invited him to go for a ride. Lee accepted the invitation and Coleman drove him to the Waterbury Shopping Plaza. Coleman told Lee that he had a check and asked Lee to cash it for him. He gave Lee a check payable to Richard Cam and also handed Lee a driver's license. Lee took the check and license to a large grocery store at the shopping plaza and asked a cashier to cash the check. She asked for identification and Lee then gave her the driver's license which Coleman had given to him. The cashier recognized the check as one reported to have been stolen from Guilford Arts, of Madison, and refused to cash it. Lee then walked from the store back to Coleman's car, entered it and handed the check and driver's license *263 to the defendant. Coleman drove to the rear of the plaza where he was stopped by police who had been dispatched to the scene upon receipt of a complaint that someone was attempting to cash a stolen check. The police arrested Coleman and Lee and searched the car. They found nothing; but, after the search, an officer observed Coleman drop something under the seat of the car and discovered there a wallet which contained a driver's license in the name of Richard Cam and a check numbered 15587 bearing the name "Guilford Arts," which license and check were identified by the cashier as those presented to her by Lee. A bookkeeper for Guilford Arts testified that around July 15, 1970, he had discovered some company checks and a checkwriter missing and reported this to the Madison police. He identified the check which Lee had tried to cash as being one of the stolen checks. At the trial, Lee admitted that he had pleaded guilty in the Circuit Court to a charge of attempting to obtain money by false pretenses.
On this evidence, the jury could reasonably and logically conclude that Coleman was guilty as charged. They could properly infer that the attempt to obtain money by cashing the stolen check was an attempt to obtain money by the false representation that the check was a valid check issued by Guilford Arts to Richard Cam, and the false representation by means of the driver's license that Lee was in fact Richard Cam. "A representation may be found to be false either expressly or by implication and may consist of any act, word, symbol, or token calculated and intended to deceive." State v. Farrah, 161 Conn. 43, 49-50, 282 A.2d 879. The jury could also reasonably infer intent to defraud by the use of another person's *264 driver's license, and infer guilty knowledge from the attempt to conceal the wallet containing the check and the driver's license when the police made the arrest. Intent to defraud, which is an essential element of the crime of obtaining money by false pretenses, is difficult to prove beyond a reasonable doubt by direct evidence but it may be inferred from the conduct of the accused. State v. Farrah, supra; State v. Smith, 157 Conn. 351, 354, 254 A.2d 447. The necessary intent may be inferred from the circumstances and from what was done by the accused. State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581.
We find no merit to the contention of the defendant that the court erred in refusing to set aside the verdict as contrary to law and the evidence.
There was also no error in admitting into evidence the check and the driver's license. They were positively identified by the cashier as the check and the license which were tendered to her in the attempt to have her cash the check. The arresting officer also identified them as being in the wallet which Coleman attempted to conceal under the seat of his car when he was apprehended in the parking lot of the shopping plaza, and the check was identified by the Guilford Arts' bookkeeper as one of those stolen from that company. Both items were sufficiently identified to be properly admitted as full exhibits for the consideration of the jury.
The only remaining claim of the defendant is that the court erred in denying the defendant's motion to dismiss the information and to discharge the defendant "because the state of Connecticut, in said information and in the bill of particulars, failed to charge the defendant with a crime."
*265 The defendant was charged in a so-called short form information as permitted by § 493 of the Practice Book.[1] This form of information was first authorized by an amendment to the 1922 Practice Book which was adopted April 6, 1929, effective September 1, 1929. The obvious purpose of the amendment was to dispense with the prolixity of common-law averments alleging criminal offenses while still assuring to an accused his constitutional right to be apprised by the state's pleadings of the essential elements of the crime with which he was being charged. State v. Beaulieu, 164 Conn. 620, 624, 325 A.2d 263; State v. Couture, 151 Conn. 213, 215-16, 196 A.2d 113; State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S. Ct. 52, 7 L. Ed. 2d 33. To afford to an accused his full rights, § 495 of the present Practice Book (1963) also provides that if an accused feels that an information filed pursuant to § 493 of the Practice Book fails sufficiently to inform him of the offense with which he is charged to enable him to prepare his defense or to give him such information as he is entitled to under the Connecticut constitution, he may obtain further information upon filing *266 a motion for a bill of particulars and, if still not satisfied, may seek an order of the court; Practice Book § 496; for a further bill of particulars.
The information filed against Coleman charged him with "the crime of attempting to obtain money by false pretenses at Waterbury, on or about 8/15/70, in violation of Section 53-360 of the General Statutes." As we have noted, § 53-360 provided a penalty for anyone "who, by any false token, pretense or device, obtains from another any valuable thing ... with intent to defraud him or any other person." Coleman filed a motion for a bill of particulars asking that the state make its charges more particular by stating: "1. The specific nature of the offense or offenses which the defendant is charged with. 2. The time, place and manner in which this offense was committed. 3. The specific acts performed by the defendant which constitute all necessary elements of the crime charged. 4. The general circumstances surrounding the alleged crime. 5. State with particularity, the date, time, of said alleged violation and the Section of the Connecticut General Statutes violated. 6. State with particularity, the name or names, including addresses, of all persons the State alleges were involved in said violation." In response to this motion, the state filed a bill of particulars stating: "1. On or about August 15, 1970 the defendant did attempt to obtain the sum of $87.79 from the Stop and Shop Market, Waterbury, by assisting one James H. Lee in presenting a stolen and forged check upon the account of Guilford Arts at the Union and New Haven Trust Company, New Haven, Connecticut. 2. August 15, 1970, Stop and Shop Market, Waterbury Plaza, Waterbury, Connecticut, *267 at approximately 8:10 p.m. 3. See # 1 above. 4. See # 2 above. 5. See # 2 above. 6. The defendant and James H. Lee."
The defendant at no time prior to or during the trial objected to the information or bill of particulars, nor did he move for a more specific statement or for a supplemental bill of particulars as permitted by §§ 495, 496 and 497 of the Practice Book. Nor did he move to quash the information as permitted by § 499 of the Practice Book on a claim that the particulars stated did not constitute the offense charged in the indictment. Rather, on the first day of trial, the court was expressly informed that the defendant was satisfied and was not seeking any further information.[2] Nevertheless, at the conclusion of the state's case in chief, the defendant moved to dismiss the information and discharge the defendant, and has briefed a claim that the court committed error in denying the motion. It is his claim "that the State had not, by a Bill of Particulars, charged the defendant with a statutory crime." He asserts that the bill of particulars was defective because it did not contain an allegation of an intent to defraud.
We find no error in the ruling of the court for three reasons, any one of which suffices to support the court's decision. In the first place, as we have noted, at the start of the trial the defendant *268 expressly represented to the court his satisfaction with the information supplied by the state in response to his motion for a bill of particulars. If any uncertainty existed as to the state's pleadings or any further information was necessary to apprise the defendant of the statutory crime with which he was charged in the information in order to prepare his defense and to plead the judgment in bar of any further prosecution, the way was open to him to secure it by motion. Having expressed his satisfaction with the pleadings as they stood at the opening of the trial, the defendant waived any defect that might have been present in the information and in the bill of particulars. 21 Am. Jur. 2d, Criminal Law, § 325. "[R]ights once waived cannot be regained by revoking the waiver." Lee v. Casualty Co. of America, 90 Conn. 202, 208, 96 A. 952; Hendsey v. Southern New England Telephone Co., 128 Conn. 132, 135, 20 A.2d 722.
In the second place, the defendant has made no claim, and there is not the slightest indication in the record, that he was in any way prejudiced or that in its charge to the jury the court did not fully instruct them as to the burden of the state to prove an intent to defraud. The defendant has not attacked the charge and, accordingly, it is not printed in the record. It is, therefore, presumed to have been correct. Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 451, 254 A.2d 907; State v. Mallette, 153 Conn. 584, 587, 219 A.2d 447. "It is essential to any orderly trial that the jury be presumed, in the absence of a fair indication to the contrary, to have followed the instructions of the court as to the law." State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312.
In the third place, the bill of particulars did not exist in a vacuum. It must be read with the information *269 which the defendant asked be particularized. "The office of a bill of particulars is to supply both the accused and the court additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense." (Emphasis added.) 41 Am. Jur. 2d, Indictments and Informations, § 163. "The function of the bill of particulars in a criminal case is to provide information fairly necessary to enable the accused to understand and prepare his defense against the charges without prejudicial surprise upon the trial. It is complementary to the shorter form of indictment." Brown v. Commonwealth, 378 S.W.2d 608 (Ky.). "In other words, the general rule is that a bill of particulars merely amplifies the indictment and limits the scope of the proof on the trial." Note, "Sufficiency of indictment as affected by bill of particulars," 10 A.L.R. 982, 983. The bill of particulars supplements rather than supplants the information or indictment.
In the short form information, the defendant was expressly charged with the crime of attempting to obtain money by false pretenses "in violation of Section 53-360 of the General Statutes." This section of the statute, a violation of which was the specific charge lodged against the defendant, included in its definition of the offense the obtaining of any valuable thing from another, by any false token, pretense or device, "with intent to defraud him or any other person." The bill of particulars, answering the question asking for the nature of the offense by reciting that "the defendant did attempt to obtain the sum of $87.79 from the Stop and Shop Market, Waterbury, by assisting one James H. Lee in presenting a stolen and forged check," certainly did inform the defendant of the *270 nature of the offense. 4 Wharton, Criminal Law and Procedure (Anderson Rev.) § 1773; 41 Am. Jur. 2d, Indictments and Informations, § 111. We conclude that there is no merit whatsoever to the present claim of the defendant that "the state of Connecticut, in said information and in the bill of particulars, failed to charge the defendant with a crime."
There is no error.
In this opinion SHAPIRO, LOISELLE and MACDONALD, Js., concurred.
BOGDANSKI, J. (concurring). I agree with the result but find myself unable to join in the court's opinion. I cannot accept the reasoning employed by the majority in concluding that the defendant voluntarily waived his constitutional right to be "informed of the nature and cause of his accusation"; Conn. Const. art. I § 8; nor do I agree that the reference in the short form information to the specific statute which defined the offense was sufficient to allege the element of intent to defraud.
The defendant's motion to dismiss the information was based on his constitutional right to be informed of the charges against him. The defendant was accused by an information which read as follows: "Francis M. McDonald, State's Attorney for the County of New Haven at Waterbury, acting herein by Walter Scanlon, Asst. State's Attorney, accuses Eugene Coleman of the crime of attempting to obtain money by false pretenses at Waterbury, on or about 8/15/70, in violation of Section 53-360 of the General Statutes."
The defendant moved for a bill of particulars, requesting a statement of, among other things, "[t]he specific nature of the offense or offenses *271 which the defendant is charged with ... [and] [t]he specific acts performed by the defendant which constitute all necessary elements of the crime charged." The bill of particulars filed by the state answered as follows: "On or about August 15, 1970 the defendant did attempt to obtain the sum of $87.79 from the Stop and Shop Market, Waterbury, by assisting one James H. Lee in presenting a stolen and forged check upon the account of Guilford Arts at the Union and New Haven Trust Company, New Haven, Connecticut."
Before trial, the defendant's counsel assured the court that he was satisfied with the answers contained in the bill of particulars. At the conclusion of the state's case, however, the defendant moved to dismiss the information. One of his grounds for dismissal was the state's failure to allege in either the information or the bill of particulars an intent to defraud, which is an essential element of the crime. The court denied the motion. At the conclusion of the trial, the information, the defendant's motion for a bill of particulars and the bill of particulars itself were given to the jury.
General Statutes § 53-360 (repealed by Public Acts 1969, No. 828, effective October 1, 1971) provided in pertinent part that "[a]ny person who, by any false token, pretense or device, obtains from another any valuable thing ... , with intent to defraud him or any other person, ... shall be fined not more than five hundred dollars or imprisoned not more than three years or both." (Emphasis added.) The defendant claims that the information and the bill of particulars taken together failed to charge him with the commission of any crime.
*272 "In all criminal prosecutions, the accused shall have a right ... to be informed of the nature and cause of the accusation...." Conn. Const. art. I § 8. That right, one of the fundamentals of American criminal jurisprudence, is also a federal constitutional right which the fourteenth amendment guarantees defendants in all state prosecutions. See U.S. Const. amend. VI; Argersinger v. Hamlin, 407 U.S. 25, 27-28, 92 S. Ct. 2006, 32 L. Ed. 2d 530; In re Gault, 387 U.S. 1, 33, 87 S. Ct. 1428, 18 L. Ed. 2d 527; In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed. 682.
The right of an accused to be informed of the charges against him does not preserve the outmoded common-law rules of criminal pleading. Formal defects or linguistic imprecision in the state's pleadings, if nonprejudicial, are no longer fatal. Practice Book §§ 523-531; State v. Beaulieu, 164 Conn. 620, 625, 325 A.2d 263; State v. Rafanello, 151 Conn. 453, 456-57, 199 A.2d 13; State v. Mola, 128 Conn. 407, 410-11, 23 A.2d 126; State v. McGee, 81 Conn. 696, 699, 72 A. 141. The constitution simply assures the accused the right to be apprised by the state's pleadings of all the essential elements of the offense intended to be charged. Russell v. United States, 369 U.S. 749, 763, 82 S. Ct. 1038, 8 L. Ed. 2d 240; United States v. Debrow, 346 U.S. 374, 376, 74 S. Ct. 113, 98 L. Ed. 92; Hagner v. United States, 285 U.S. 427, 431, 52 S. Ct. 417, 76 L. Ed. 861; United States v. Denmon, 483 F.2d 1093, 1095 (8th Cir.); State v. Couture, 151 Conn. 213, 215-16, 196 A.2d 113; State v. McGee, supra; State v. Keena, 63 Conn. 329, 330, 28 A. 522; State v. Costello, 62 Conn. 128, 130, 25 A. 477; 4 Wharton, Criminal Law and Procedure (Anderson Rev.) §§ 1758, 1762, 1794; Wright, Federal Practice and Procedure § 125. In State v.
*273 Costello, supra, it was said to be "a general rule of criminal pleading, from which no substantial departure is ever permitted, that every information or indictment must contain a statement of all the facts and circumstances essential to constitute the crime with such particularity and certainty that the defendant may know the nature of the crime of which he is accused and what he is to answer, that the jury may be warranted in their conclusion of guilty or not guilty upon the premises delivered to them, that the court may see a definite offense on the record to which they may apply the judgment and punishment prescribed by law, and that the conviction or acquittal of the defendant may be pleaded in bar to a subsequent prosecution for the same offense." The requirement that all the essential elements of the crime be alleged with specificity also establishes the salutary preliminary safeguard that no prosecution will be brought unless whoever drew up the indictment or information has considered the necessity of proving each and every element of the offense. United States v. Denmon, supra. Thus the right to be informed of the nature and cause of the accusation is a substantial protection and no mere technicality of pleading.
"An indictment [or information] that does not allege all the elements of the crime is not cured by an allegation that what was done was `in violation of the statute" which defines the offense and identifies its elements. United States v. Guterma, 189 F. Sup. 265, 270 (S.D. N.Y.). Such an allegation "is not an allegation of fact but a legal conclusion of the pleader; it constitutes no part of the description of the offense." Sutton v. United States, 157 F.2d 661, 664 (5th Cir.). As Chief Justice Marshall stated long ago in Schooner Hoppet v. United States, 11 *274 U.S. (7 Cranch) 389, 393, 3 L. Ed. 380: "It is not controverted that in all proceedings in Courts of common law, either against the person or the thing for penalties or forfeitures, the allegation that the act charged was committed in violation of law, or of the provisions of a particular statute will not justify condemnation, unless, independent of this allegation, a case be stated which shows that the law has been violated. The reference to the statute may direct the attention of the Court, and of the accused, to the particular statute by which the prosecution is to be sustained, but forms no part of the description of the offence. The importance of this principle to a fair administration of justice, to that certainty introduced and demanded by the free genius of our institutions in all prosecutions for offences against the laws, is too apparent to require elucidation, and the principle itself is too familiar not to suggest itself to every gentleman of the profession." (Emphasis added.) Accord, United States v. Nixon, 235 U.S. 231, 235, 35 S. Ct. 49, 59 L. Ed. 207; State v. Tyrrell, 100 Conn. 101, 102, 122 A. 924; 4 Wharton, op. cit. § 1761; Wright, op. cit.
The defendant's constitutional right to know the nature of the charges against him does not pose a difficult challenge to the prosecution. Ordinarily it is sufficient to charge a statutory offense in the words of the statute, unless the statute is overly general or indefinite so as to require greater particularity. State v. Moran, 99 Conn. 115, 117-18, 121 A. 277; State v. Costello, supra, 131; 4 Wharton, op. cit. §§ 1796, 1797; Wright, op. cit. The accused is not entitled to a preview of the prosecution's case or to specifications that are merely evidential; 4 Wharton, op. cit. § 1764; nor is the state penalized for an unskillfully drafted pleading, although it may *275 properly be required to clarify ambiguities by filing an amended pleading. State v. Mola, 128 Conn. 407, 23 A.2d 126. If the state's pleadings inform the accused of the charge against him with sufficient precision to enable him to prepare his defense and avoid prejudicial surprise, and to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty. Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240; United States v. Debrow, 346 U.S. 374, 74 S. Ct. 113, 98 L. Ed. 92; State v. Costello, supra; Wright, op. cit. § 125.
The state accused the defendant in this case with a so-called short form information. As permitted by Practice Book § 493, it did not describe the offense charged with particularity but only stated the name of the offense and the specific section of the General Statutes which was allegedly violated. The rule permitting short form informations was adopted to "avoid unnecessary prolixity" such as was required at common law. State v. Davis, 141 Conn. 319, 320, 106 A.2d 159. The short form information has been held to be constitutional despite its brevity and incompleteness because the defendant has the opportunity to obtain the information to which he is constitutionally entitled by requesting a bill of particulars under Practice Book § 495. State v. Beaulieu, 164 Conn. 620, 325 A.2d 263; State v. Davis, supra, 321; State v. Pallotti, 119 Conn. 70, 72-73, 174 A. 74. Practice Book § 495 provides: "When an indictment or information charges an offense in accordance with the provisions of Sec. 493, but fails to inform the accused of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information *276 as he is entitled to under the constitution of this state, the court may, at any time, of its own motion, and shall, at the request of the accused made at or before the time at which his plea is entered, order the state's attorney to furnish a bill of particulars containing such information as may be necessary for these purposes...." As the Court of Appeals in New York said in the principal case upholding the constitutionality of short form indictments and informations, "a voluntary failure to assert a right provided by statute constitutes a weak foundation for a claim that the statute deprives the accused of a constitutional right."[1]People v. Bogdanoff, 254 N.Y. 16, 31, 171 N.E. 890. Practice Book §§ 493-499A do not purport to change the constitutional standards by which the state's criminal pleadings are measured. They only shift the burden of requesting the complete statement of facts onto the accused. Therefore, when the accused requests a full bill of particulars, the burden is again on the state to supply an adequately informative pleading.
The bill of particulars which the state supplies becomes a part of the record. Practice Book § 498. Thus, when a short form information is employed, the sufficiency of the state's pleadings can be tested by reading the information in conjunction with the bill of particulars. The problem may arise that the bill of particulars furnished by the state still does not adequately inform the defendant. That problem should never become critical, because supplemental bills of particulars may be ordered by the court or furnished voluntarily by the prosecution. Practice *277 Book § 497. To enforce the constitutional mandate, Practice Book § 499 provides: "If it appears from the bills of particulars ... that the particulars stated do not constitute the offense charged in the indictment or information ... , the court shall quash the indictment or information unless the state's attorney shall furnish another bill of particulars which so states the particulars as to show that the particulars constitute the offense charged in the indictment or information...."[2]
An intent to defraud was one of the essential elements of the offense defined by General Statutes § 53-360. When intent is an essential element of the alleged offense, the accused must be so informed by the state's pleadings. State v. McGee, 81 Conn. 696, 698-99, 72 A. 141; State v. Wilson, 30 Conn. 500, 503-504; see United States v. Behrman, 258 U.S. 280, 288, 42 S. Ct. 303, 66 L. Ed. 619; United States v. Britton, 107 U.S. 655, 669, 2 S. Ct. 512, 27 L. Ed. 520; Walker v. United States, 342 F.2d 22 (5th Cir.); State v. Fontenot, 256 La. 12, 235 So. 2d 75; People v. McGuire, 5 N.Y.2d 523, 158 N.E.2d 830; 4 Wharton, op. cit. § 1773; Wright, op. cit. § 125. The averment in the short form information of an attempt to obtain money by false pretenses was not sufficient to allege the necessary specific intent; State v. Wilson, supra; 4 Wharton, op. cit. § 1773; nor was the omission of the essential factual allegation of intent cured by reference in the information to § 53-360. Schooner Hoppet v. United States, 11 U.S. (7 Cranch) 389, 3 L. Ed. 380; Sutton v. United States, 157 F.2d 661, 664-65 (5th Cir.). The information and bill of particulars given the defendant in the present case, read together, were defective, *278 not because they were unskillfully or imprecisely drafted but because they completely omitted to aver an essential element of the offense charged, namely, the intent to defraud.
The state argues that the defendant waived any defects in the information and bill of particulars by assuring the court, through counsel, that the answers contained in the bill of particulars were sufficient and by failing to object until after the state had put on its case. See State v. Kemp, 126 Conn. 60, 84, 9 A.2d 63; State v. McGee, supra. Since the state could still amend its pleadings by filing a supplemental bill of particulars, either voluntarily or on order of the court, the defendant's motion was not untimely. Furthermore, the majority rule in this country, to which Connecticut adheres, is that the omission in the state's pleadings of an essential ingredient of the offense charged cannot be waived. State v. Couture, 151 Conn. 213, 216, 196 A.2d 113; State v. Keena, 63 Conn. 329, 331-32, 28 A. 522; 4 Wharton, Criminal Law and Procedure §§ 1881, 1885. Indeed, in Keena, supra, and Couture, supra, this court discovered fatal defects in the informations even though counsel for the defendants had themselves not argued them. The failure to allege the commission of an offense is a deficiency "of such importance in the orderly processes of criminal justice that we direct attention to them." State v. Couture, supra, 216. I must conclude that the trial court erred in failing either to dismiss the information or to order the state's attorney to amend it. Practice Book § 499.
The error does not, however, require reversal unless it was harmful. The usual rule is that the appellant bears the burden of establishing that *279 an error was "materially injurious" to him.[3] General Statutes § 52-265; State v. L'Heureux, 166 Conn. 312, 323, 348 A.2d 578. When, however, a federal constitutional error has occurred, the burden shifts to the state, and before the error can be held harmless, this court "must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705; see also State v. L'Heureux, supra.
After a thorough examination of the record in this case, and of pertinent parts of the transcript, I conclude that the standard of Chapman v. California, supra, has been satisfied and that the error was harmless. The state's pleadings were sufficient to enable the defendant to plead his conviction in bar of any future prosecution for the same offense. The record does not remotely suggest that the defendant was surprised at trial or was prejudiced *280 in the preparation of his defense. Counsel for the defendant was well aware of the intent requirement in General Statutes § 53-360. He did not feel the need to request a continuance. My conclusion is corroborated by the fact that on appeal the defendant has not pointed to any possibility of prejudice.
It might be argued that the defendant could have been prejudiced when the incomplete bill of particulars was transmitted to the jury along with the defendant's request for the bill of particulars, which asked for a statement of the "specific nature of the offense" and of the "specific acts performed by the defendant which constitute all necessary elements of the crime." The jury, it might be suggested, could have been misled into ignoring the requirement of intent. I am satisfied, however, that this possibility was negatived by the trial judge, who scrupulously instructed the jury on the requirement of intent. The defendant, I note, has not assigned any error in the charge.
The defendant argues that our rule has always been that, even in the absence of prejudice, an indictment or information that fails to allege all the essential elements of the offense charged cannot result in a valid conviction. That is the majority rule in the United States, and it has been the rule in Connecticut. See, e.g., State v. Keena, 63 Conn. 329, 28 A. 522; State v. Costello, 62 Conn. 128, 25 A. 477; 4 Wharton, op. cit. § 1881; but see State v. Couture, 151 Conn. 213, 196 A.2d 113. Where the short form accusation is not itself fatally defective, however, omissions in supplemental bills of particulars do not deprive the trial court of jurisdiction. I believe the more sensible view to be that nonprejudicial nonjurisdictional defects in the bill of particulars *281 do not require dismissal. See United States v. Denmon, 483 F.2d 1093, 1096 (8th Cir.); Wright, Federal Practice and Procedure § 125.[4]
In conclusion, the constitutions of this state and the United States impose on the prosecution the duty of fully informing the defendant of the nature and cause of the accusation against him. In my view, the prosecution did not fulfill that important duty in this case.
NOTES
[1] "[Practice Book] Sec. 493. CHARGING THE OFFENSE The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the accused is being prosecuted in one or more of the following ways: (a) By using the name given to the offense by the common law or by a statute. (b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the accused notice of what offense is intended to be charged. The indictment or information may refer to a section or subsection of any statute creating the crime charged therein, and in determining the validity or sufficiency of such indictment or information regard shall be had to such reference."
[2] The following colloquy occurred between the presiding judge and counsel for the defendant on the first day of trial: "The Court: Mr. Daly, in looking through the file in this matter I notice there is a motion for bill of particulars and motion for production and disclosure. Mr. Daly: If your Honor please, I have had a response filed by the State's Attorney's office to the Bill of Particulars, and also a response filed to the Motion for Disclosure. The Court: They are satisfactory to you; is that correct? Mr. Daly: Yes, each question is answered. The Court: All right. There is nothing further, then, that you are seeking on either one of those? Mr. Daly: No."
[1] In the rare case in which an accused is not represented by counsel, that justification may appear strained, and the use of a short form accusation would raise a constitutional problem not hitherto presented to this court.
[2] See also Practice Book § 499A, not in effect at the time of the defendant's trial.
[3] The "harmless error" test has been variously stated, and the versions appearing in our reports are not always consistent with each other. Compare State v. Vennard, 159 Conn. 385, 393, 270 A.2d 837 ("the defendant has the burden of showing that the rulings were probably harmful to him" [emphasis added]) with State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 ("[i]f the record discloses that the rulings could not reasonably have affected the verdict, they were not harmful and hence not reversible error" [emphasis added]). This is not the case in which to attempt to reconcile the various expressions, though it is pertinent to recall Justice Frankfurter's admonition that "justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11. "[H]armless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one." Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705, rehearing denied, 386 U.S. 987, 87 S. Ct. 824, 17 L. Ed. 2d 705. See also Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 11 L. Ed. 2d 771.
[4] As Wright, Federal Practice and Procedure, pp. 233-34 says: "The fundamental purpose of the pleadings is to inform the defendant of the charge so that he may prepare for his defense, and the test of sufficiency ought to be whether it is fair to the defendant to require him to defend on the basis of the charge as stated in the particular indictment or information. The stated requirement that every ingredient or essential element of the offense should be alleged must be read in the light of the fairness test just suggested." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1657508/ | 673 So.2d 372 (1996)
Gregory McBRIDE
v.
CHEVRON U.S.A., a Foreign Corp.
No. 92-CA-00769-SCT.
Supreme Court of Mississippi.
March 28, 1996.
As Modified on Denial of Rehearing May 23, 1996.
*374 Curtis R. Hussey; Hattiesburg, John M. Deakle, Hattiesburg; John Michael Sims, Heidelberg; J. Robert Sullivan, Sr., Sullivan & Sullivan, Laurel, for Appellant.
Robert D. Gholson, Gilchrist Sumrall Thaxton & Yoder, Laurel, for Appellee.
Before PRATHER, P.J., and PITTMAN and McRAE, JJ.
PRATHER, Presiding Justice, for the court:
I. INTRODUCTION
At issue in this negligence case is the proper method of calculating damages when the plaintiff has settled with one, but not all, of the co-defendants. Gregory McBride appeals the October 31, 1991, jury verdict of the Jones County Circuit Court in which he was found seventy-five percent negligent and Chevron, U.S.A., Inc. was found twenty-five percent negligent in a drilling accident that occurred on Chevron's leased property near Heidelberg, Mississippi. Because Radco Fishing & Rental Tools, Inc. settled with McBride during trial, calculations after the jury verdict resulted in McBride receiving no money from Chevron. McBride raises the following issues on appeal:
A. Whether the trial court conducted the proper calculations when applying Radco's settlement to the jury's verdict.
B. Whether the trial court erred in refusing to grant McBride's Motions To Alter Or Amend The Judgment For Additur, Or In the Alternative, For New Trial On The Damages Issue.
C. Whether the trial court erred in failing to allow McBride the opportunity to present rebuttal testimony.
D. Whether McBride was entitled to certain jury instructions regarding the liability of Chevron and directed verdicts.
II. STATEMENT OF THE FACTS
On July 24, 1987, Gregory McBride was working as a floorhand for V.A. Sauls, Inc. in the Reedy Creek Field, located in Jones County, Mississippi. Sauls had contracted with Chevron U.S.A., Inc. to perform a workover, which term refers to conducting repairs on an existing well.
In addition to McBride, the Sauls crew was comprised of three Herndons: Pete, Mike and Ricky, who were the toolpusher, driller and floorhand respectively. The function of a toolpusher is to supervise the entire rig team; a driller operates the rig; and a floorhand works the floor on a particular piece of equipment. McBride was supervised by Pete Herndon, the toolpusher for the crew. The ultimate decision on how the operation was conducted belonged to Chevron, specifically to Chevron company representative Merle Pellusch, who was the drilling supervisor. Chevron, however, asserts that the Sauls rig crew, specifically Pete as the supervisor, had the responsibility of operating the bowl and slips properly.
When McBride was working the equipment, the backup tongs did not hold, causing the pipe to turn rapidly in the hole. The bowl was not bolted or chained to the wellhead, causing the slip handles to strike McBride's right knee. The decision not to chain the bowls had been made by the Sauls work crew. It is common practice not to bolt or chain the bowl, and the injury could have still occurred even if the bowl had been bolted or chained. Johnny Windham, former Sauls employee who worked with McBride as a derrick hand, testified that he did not see McBride operate the tongs in an incorrect manner nor did he think McBride was standing too close to the equipment. Mike Herndon, by contrast, testified that McBride was standing too close to the slips, and that he probably should have been the one to tell McBride to back up from the tongs.
McBride had only been working for Sauls for about three months. While McBride had worked with backup tongs, he testified he had never performed the type of job which gave rise to the accident. There was testimony at trial as to whether McBride had been trained to preform this type of job, with Chevron claiming that he had been. Apparently, at the time of the accident, no representatives from Radco or Chevron were *375 present. Pellusch claimed it was not his responsibility to be on the premises at all times, and Radco, in its supplemental answer, stated that the slips and bowl were common rental equipment which did not require them to furnish an operator.
McBride underwent two knee operations which left four scars, and he is currently twenty-five percent permanently partially disabled in the right knee. McBride had previously undergone surgeries on his left knee and collarbone from football accidents, from which he completely recovered. McBride also submitted medical reports indicating that he suffers from depression. McBride collected workers' compensation benefits from Saul's carrier.
Dr. Donald Cook was accepted as an expert in the field of orthopedic medicine and testified that McBride suffered a severe injury, and that the first operation was unsuccessful, making additional surgery on his knee necessary. According to Dr. Cook, it is highly probable that McBride will suffer pain the remainder of his life. McBride is limited in the type of work he can do by both physical and mental impairments. He suffers an approximately thirty-five percent medical impairment to his lower right extremity and Dr. Randall Thomas, psychologist, testified that McBride suffered from depression about his physical condition. McBride is currently taking antidepressant medication. Dr. Donald Woodall, vocational rehabilitation counselor, testified that McBride's vocational outlook was "bleak," and that there were no jobs in south Mississippi he could perform at the time of trial due to his impairments and educational deficits.
At trial, G. Richard Thompson, an economist, calculated the lifetime earnings of McBride discounted to present value to be $321,770. Thompson also testified that McBride will incur over $242,316 in physical therapy costs in his lifetime as a result of the knee injury. Joey Cooley, a physical therapist, testified that whether or not McBride would require supervised physical therapy would depend on his physician, but that he would probably always need to perform some form of therapeutic exercise.
III. STATEMENT OF THE CASE
On April 6, 1990, Gregory McBride (McBride) filed a complaint against Radco Fishing & Rental Tools, Inc. (Radco) for alleged injuries he sustained while using their equipment at a wellsite owned by Chevron U.S.A., Inc. (Chevron). After initial discovery, McBride amended his complaint to include Chevron as an indispensable defendant. The trial court allowed Bituminous Insurance Companies to intervene in the suit as the workers' compensation carrier.
Chevron filed a motion for summary judgment, asserting that the workers' compensation statutes pre-empted any recovery against it. This motion was denied, and the trial commenced on October 12, 1991. About midway through the trial, McBride settled with Radco. The jury was instructed by the court that henceforward all evidence presented in the trial should be considered only as it related to Chevron and any potential liability which Chevron might have to McBride, but the jury was not given any details of the McBride-Radco settlement. After a five-day trial, the jury returned a verdict, finding that McBride had suffered $500,000 in damages, but that he was seventy-five percent at fault for his injuries, while Chevron was found to be twenty-five percent at fault for said injuries.
McBride made a motion for a new trial, basing the motion on what is now the first assignment of error, namely the issue of verdict reduction calculations. The trial judge denied the motion with the following comments:
I have no authority you have not furnished me any authority or have not been able to find any authority on these points. I don't have the time to do research on a question like this. All of my research and writing I might try to formulate as the result of my research, I think it would still be something that the Supreme Court would say... . I will just let them decide what they need to do about it... .
... .
The instruction, I think is somewhat confusing, but as I remember, it was an instruction *376 not objected to. The way the verdict turned out, I think it did leave room for some improvement in the future and maybe even in this case where the Court might need to make some adjustment... . I know this case is going to the Supreme Court and I think they are better equipped to handle this question that I am.
IV. ANALYSIS OF THE LAW
A. Whether the trial court conducted the proper calculations when applying Radco's settlement to the jury's verdict?
This assignment of error presents a question of first impression in this state. While trial courts have routinely performed calculations of jury awards for disbursement purposes, this Court has not specifically addressed the method to be followed when the calculations involve a settlement between a plaintiff and one or more, but not all, of the co-defendants. Unfortunately, our statutes on joint and several liability do not address damages calculations with regard to this situation. However, some guidance on the proper method for calculating the award can be gleaned from these statutes, case law and other states' jurisprudence.
First, McBride argues the pros and cons of what has been termed in various other states as the "fault-first" method versus the "settlement-first" method. These terms refer to the split which has formed among various courts with regard to deciding whether the percentage representing the plaintiff's share of the fault should be applied to the plaintiff's gross damages before or after subtracting the amount of the settlement in order to arrive at the plaintiff's net recovery from the nonsettling tortfeasor(s). See: Jeffrey F. Ghent, J.D., Comparative Fault: Calculation of Net Recovery by Applying Percentage of Plaintiff's Fault Before or After Subtracting Amount of Settlement by Less Than All Joint Tortfeasors, 71 A.L.R.4th 1108, 1109 (1989). The following calculations illustrate the substantial difference between these two approaches as applied to the facts of the present case:
Fault-First Method
$500,000 (damages awarded by the jury)
375,000 (McBride's 75% percent negligence)
= $125,000
- 150,000 (Radco settlement)
= 0 (Chevron liability)
Settlement-First Method
$500,000 (damages awarded by jury)
- 150,000 (Radco settlement)
= 350,000
- 262,500 (McBride's 75% negligence)
= 87,500 (Chevron liability)
McBride argues that the settlement-first method is superior to the fault-first method given that it promotes settlement, more accurately reflects apportionment of liability among the responsible parties, and reflects the verdict where, as here, the jury was not aware of the amount of the settlement.
Chevron, on the other hand, views the settlement-first approach as an opportunity for McBride to collect more than he was entitled to by the jury. Chevron notes that under the settlement-first approach, McBride would collect $87,500 from Chevron, reflecting their twenty-five percent negligence, in addition to the previously settled for amount with Radco of $150,000, for a grand total of $237,500 in damages. Chevron argues that McBride would, in effect, be receiving a double recovery because, absent consideration of the Radco settlement, the most McBride could recover would be twenty-five percent of $500,000, which would entitle him to $125,000. Chevron claims that if it were forced to pay under a settlement-first method, then McBride would receive $112,500 more in damages than he is entitled to. The flaw in Chevron's analysis, however, is that the jury was never allowed to consider the fault of Radco when determining fault between the parties, pursuant to the instructions of the trial judge, who instructed the jury as follows:
*377 The Court instructs the jury that should your verdict be for the plaintiff in arriving at the damages, if any, to be assessed against the defendant, Chevron USA, you are hereby instructed that you are to fix the entire amount which you believe that the plaintiff has suffered. You are not to take into consideration any settlement with any other party. The Court will make any necessary adjustments necessitated by the settlement with Radco.
Recent decisions from other state courts have reached differing conclusions on whether the plaintiff's share of fault should be deducted from his gross damages before or after subtracting the amount of the settlement. Cases in which states have adopted a fault-first method in damages computation include: Lemos v. Eichel, 83 Cal. App.3d 110, 147 Cal. Rptr. 603 (5th Dist. 1978), American Pharmaseal v. TEC Systems, 162 Ill. App.3d 351, 113 Ill.Dec. 623, 515 N.E.2d 432, app. den. 119 Ill.2d 553, 119 Ill.Dec. 381, 522 N.E.2d 1240 (1987), Mulinix v. Saydel Consolidated School Dist., 376 N.W.2d 109 (Iowa App. 1985), Schiles v. Schaefer, 710 S.W.2d 254 (Mo. App. 1986), Peterson v. Multnomah County School Dist., 64 Or. App. 81, 668 P.2d 385 (1983).
Lemos v. Eichel, 83 Cal. App.3d 110, 147 Cal. Rptr. 603 (5th Dist. 1978) and American Pharmaseal v. TEC Systems, 162 Ill. App.3d 351, 113 Ill.Dec. 623, 515 N.E.2d 432 (2d Dist. 1987), both cases where the states chose the fault-first method, can be distinguished in that the juries in these cases were told to consider the comparative liability between all tortfeasors, including settling defendants. In the present case, by contrast, the jury was instructed to allocate relative degrees of fault only between McBride and Chevron. This is a highly important distinction, given that the jury could well have found that Radco shared a substantial degree of fault with the other parties, had they been instructed to so consider Radco's conduct.
Cases in which states have adopted the settlement-first method of damages computation are: Rittenhouse v. Erhart, 424 Mich. 166, 380 N.W.2d 440 (1985); Jensen v. ARA Services, Inc., 736 S.W.2d 374 (Mo. 1987) (refusing to follow Schiles v. Schaefer, 710 S.W.2d 254 (Mo. 1986), an earlier decision selecting the fault-first method); Pollicina v. Misericordia Hospital Medical Center, 187 A.D.2d 217, 593 N.Y.S.2d 512 (1993); and Shelby v. Action Scaffolding, Inc., 171 Ariz. 1, 827 P.2d 462 (1992).
In a medical malpractice and wrongful death action in New York, the plaintiff appealed from a resettled judgment following a jury verdict in his favor, which reduced the net damages owed by the nonsettling defendant to zero. Pollicina v. Misericordia Hospital Medical Center, 187 A.D.2d 217, 593 N.Y.S.2d 512 (1993). The trial court viewed the multiple defendants' settlements as setoffs from the remaining defendant hospital. Pollicina, 187 A.D.2d at 217, 593 N.Y.S.2d 512. The appellate court modified the judgment, stating, inter alia, that a result virtually exonerating a nonsettling defendant is unfair and goes against the grain of encouraging settlements. Id. Since the New York state statute, like ours, did not address in what particular order verdict reduction should be accomplished, the appellate court determined that "[it] should be carried out in a manner that will advance rather than defeat the statute's goal." Id. 593 N.Y.S.2d at 513. The New York appellate division also followed this same approach in a decision one year earlier, when it modified a decision in which three out of four defendants settled during trial, and the remaining defendant was held responsible for only $10,000 of a $2.6 million verdict, despite being apportioned thirty-five percent of the fault. Williams v. Niske, 181 A.D.2d 307, 586 N.Y.S.2d 942 (1992). The appellate court said that the "jury verdict should have been reduced first by pretrial settlements, and then this could be rendered by [the] combined shared [sic.] of fault assessed against the defendants who settled during trial, with [a] result that the nonsettling defendant was liable for $595,000." Niske, 181 A.D.2d 307, 586 N.Y.S.2d 942.
In Arizona, the state supreme court granted review to a court of appeals decision that construed its Uniform Contribution Among Tortfeasors Act (UCATA). Shelby v. Action Scaffolding, Inc., 171 Ariz. 1, 827 P.2d 462 (1992). In Shelby, the jury found Shelby *378 liable for seventy percent of his injuries and Action liable for thirty percent of his injuries. Shelby, 171 Ariz. at 2, 827 P.2d at 463. Neither party requested the jury to allocate a degree of fault to the settling defendant employer. Id. The trial court in Shelby conducted damage calculations exactly as the trial court in the case sub judice. Id. at 3, 827 P.2d at 464. That is, Shelby's 70% degree of fault was subtracted first from the total judgment and then the settlement amount was deducted, resulting in Action being held responsible for no damages. Id. To initially reduce the settlement from the judgment and then apportion fault between the parties would have resulted in Action being responsible for $120,000. Id.
The Arizona Supreme Court made a decision that the settlement-first method better reflected fairness and allowed the plaintiff, who negotiated a favorable settlement, to receive the benefit of that settlement instead of the nonsettling defendant. The court noted that under a fault-first approach, the nonsettling tortfeasor can escape liability entirely. Shelby, 171 Ariz. at 5, 827 P.2d at 466.
Likewise, under the fault-first method, Chevron would escape the twenty-five percent liability that the jury intended for it to incur. The settlement-first method provides the fairer method by which Chevron incurs liability for what the jury believed was its level of culpability. However, the settlement-first method is not without its flaws. As Chevron points out, McBride would be receiving more than he would normally be entitled to under comparative negligence principles if settlement-first calculations were determined to be the appropriate method. In essence, the settlement-first approach encourages a plaintiff to settle with one or some, but not all, of the defendants because he may get more damages than the jury allocates if he proceeds to trial with all defendants. Shelby, 171 Ariz. at 6; 827 P.2d at 467. On the other hand, the fault-first approach encourages a defendant not to settle, which goes against public policy, because liability may be avoided entirely if the plaintiff receives all the jury determines he is entitled to in settlement. In Shelby, the Arizona Supreme Court viewed settlement-first to be the lesser of the two evils. Id.
In its brief, Chevron argues that there is a presumption that the jury follows the instruction of the court and that this Court would somehow be second-guessing the jury to change any part of the verdict. Chevron addresses the verdict reduction issue by stating that McBride is really complaining about Jury Instruction D-13A which states:
If you find from a preponderance of the evidence that the Plaintiff and the Defendant were negligent in the incident involved in this accident [sic] as defined in the other instructions given by the Court and that the negligence of the Plaintiff and the Defendant was a proximate contributing cause of the accident in this cause, then you shall proceed as follows:
(1) Determine the total damages, if any, the Plaintiff sustained as a direct proximate result of the accident, then
(2) Determine the percentage or degree of negligence of the respective parties (combined percentages must equal 100%).
When you have completed Steps 1 and 2 above, complete one of the following forms of the verdict and return same into the Court (writing your verdict on a separate piece of paper).
If you find for the Plaintiff as against the Defendant, Chevron U.S.A., Inc.:
"We the Jury, find the Plaintiff negligent by ____% and the Defendant, Chevron U.S.A., Inc. negligent by ____%; we find the total damages suffered by the Plaintiff to be ____."
Chevron's contention mis-characterizes eleven pages of McBride's brief, and the thrust of his argument to this Court. As Chevron acknowledges, McBride's only dispute with the instruction at trial was the peremptory nature of the language regarding his own contributory negligence. However, Chevron argues that since McBride did not object to the instruction on the grounds that it failed to take into account the negligence of Radco or the settlement with it, then he should be barred from presenting it as error on appeal. This argument is not well taken. *379 The jury instruction was of great debate to the trial court, but McBride does not mention the instruction in his first assignment of error which encompasses the whole settlement-first versus fault-first analysis. He simply asks this Court to consider this issue which has remained unsettled in our jurisprudence: once a jury apportions fault and determines damages, what method of calculation is the trial judge compelled to follow when there has been a settlement with one or more, but not all, of the co-defendants?
Finally, Chevron argues that this Court has answered the aforementioned question in Whittley v. City of Meridian, 530 So.2d 1341 (Miss. 1988). Whittley, however, does not squarely address the issue of when settlements are to be deducted from total damages. Whittley, 530 So.2d at 1346. The only argument gleaned from Whittley, albeit stretched, is that this Court would conduct fault-first analysis given that we rejected the first of two recognized methods used to determine damages due a plaintiff where co-defendants are involved and one co-defendant has settled with the plaintiff. Id. The Whittley Court rejected the first of the two methods where the jury was instructed that a settlement had been made and the amount of that settlement, and then was told that the plaintiff's recovery would be reduced by the amount of the settlement (i.e., settlement-first). Id. However, the Court's entire analysis centered around the impropriety of telling the jury the amount of the settlement for fear that it would influence their verdict. Id. Hence, the Court's decision was made, not because of a rejection of settlement-first or a conscious choice for fault-first analysis, but out of finding it would be reasonable for the jury to be informed that there was a settlement with a co-defendant. Absent the judge's so informing the jury, this Court noted, the jury would wonder why it was no longer present. Id.
Our law favors settlement for many reasons, not the least of which includes the expeditious closure of cases. Miss. Code Ann. § 85-5-1 states the following:
In all cases of joint or joint and several indebtedness, the creditor may settle or compromise with and release any one or more of such debtors; and the settlement or release shall not affect the right or remedy of the creditor against the other debtors for the amount remaining due and unpaid, and shall not operate to release any of the others of the said debtors; and all mortgages or securities for the said indebtedness shall remain in full force against the debtors not released, in favor of the creditor, and also in favor of such debtors as may be entitled to contribution, payment, or reimbursement from others of said debtors, and the right of payment, contribution or reimbursement, as among themselves, shall not be affected by this section; and if any debtor, so released, shall have paid more than his ratable share of the whole debt, the whole amount paid by him shall be credited, and if less than his ratable share, then the full amount of his ratable share shall be credited, and the other debtors shall be liable for the residue.
Miss. Code Ann. § 85-5-1 (Revised 1991).
Obviously, our legislature wanted to encourage plaintiffs to pursue their claims, while at the same time creating an atmosphere ripe for settlement. When a nonsettling defendant, such as Chevron, believes it paid more than the jury's apportioned fault, then it can seek contribution from settling defendants such as Radco pursuant to § 85-5-1. Chevron argues in favor of a fault-first method in part because it knows that the likelihood of recovering contribution under the statute is slight, given that Radco has paid McBride more than Chevron would have under the settlement-first method. In order for Chevron to recover under this statute, Radco's liability would have to be more than the $150,000 it paid, and a jury would have to determine Radco's percentage of fault.
Dicta from our case law indicates that this Court would be receptive to a settlement-first approach pursuant to which Chevron would pay $87,500 upon remand:
There was a day when parties had to be quite careful how they settled with less than all of the defendants in a pending action. It was once thought necessary that the plaintiff not even think, much less use, the words "settlement" or "release" in *380 such an event. If he wished to settle he would take a writing labeled "a covenant not to sue," and we sanctioned such legal legerdemain. We are well past the days of such foolishness [citations omitted].
There are all sorts of rational reasons why our law should allow a plaintiff to settle with less than all of the multiple defendants and proceed against the remaining defendant or defendants. Public policy favors settlement, and a partial settlement is better than none at all. Such a settlement simplifies the issues remaining at trial. It reduces expense and conserves valuable judicial resources.
* * * * * *
It offends no policy of this state to allow a plaintiff to snatch the bird in hand, then pursue the one in the bush as well.
W.J. Runyon & Son, Inc. v. Davis, 605 So.2d 38, 43 (Miss. 1992).
Runyon was later criticized by this Court for its characterization of the independent contractor relationship, but not for its comments regarding settlements. See Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 152 (Miss. 1994).
The rising number of cases involving multiple defendants necessitates this Court to choose a method of verdict reduction, given the lack of statutory mandates. It is an unavoidable fact that both the fault-first and settlement-first methods are imperfect, and each method results in either the plaintiff (pursuant to the settlement-first method) or the non-settling defendant (pursuant to the fault-first method) receiving a windfall. It thus falls to this Court to decide which party should bear the burden of the imperfections of each method and which party should enjoy the benefits thereof. It is the view of this Court that a defendant whose negligence has been found to have proximately caused injury to another person should not be allowed to escape liability for his negligence by the fortuity that a co-defendant has settled prior to trial. Accordingly, this Court adopts the settlement-first method, given that said method, despite its imperfections, yields the fairer results of the two methods.
This opinion is limited, however, to cases in which, as here, the trial court instructed the jury to consider only the relative culpabilities of the plaintiff and the non-settling defendant(s) in apportioning fault under comparative negligence principles. In such cases, a clear majority of courts nationwide which have considered this issue have agreed that the settlement-first method is the superior method for arriving at a fair judgment. The judgment of the trial court is reversed and remanded for an entry of judgment consistent with the opinion herein.
B. Whether the trial court erred in refusing to grant McBride's motions to alter or amend the judgment for additur, or in the alternative, for new trial on the damages issue.
In determining whether or not a trial judge committed reversible error in denying a motion for a new trial, this Court inquires as to whether the trial judge abused his discretion in so doing. American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss. 1995). This same abuse of discretion standard applies to this Court's review of a trial judge's denial of a motion for additur. Harvey v. Wall, 649 So.2d 184, 186 (Miss. 1995). Relevant to the review of a denial of a motion for additur is this Court's authority to impose such additur by statute, which is granted to this Court by Mississippi Code Annotated § 11-1-55 (Revised 1991).
In order to remand this case for an additur on damages, this Court must find that the jury was biased or prejudiced or that the verdict was against the overwhelming weight of the evidence. Rodgers v. Pascagoula Public School Dist., 611 So.2d 942, 944 (Miss. 1992). There is nothing in the record to indicate that the jury had any such bias or prejudice. With regard to the verdict itself, the jury's finding that McBride was seventy-five percent negligent for his own injury was supported by testimony that he was perhaps standing too close to the operation. In addition, given the proof of injuries and permanent impairment, the jury's finding that McBride had suffered $500,000 in damages can not be said to be against the "overwhelming weight of the evidence" by *381 any standard. Accordingly, this second assignment of error is not well taken and is rejected.
C. Whether the trial court erred in failing to allow McBride the opportunity to present rebuttal testimony.
At trial, McBride attempted to present the testimony of Ricky Herndon, one of his co-workers, to rebut the testimony of Mike Herndon that McBride had been standing too close to the operation. Ricky Herndon would presumably have testified, as he did in his deposition, that McBride was not standing too close to the operation. Chevron objected, noting that McBride had known of this testimony prior to trial and could have presented this testimony during his case-in-chief. The trial judge agreed with Chevron and did not allow this testimony, expressing concerns about the length of the trial.
An abuse of discretion standard applies to this Court's review of the trial judge's decision not to allow rebuttal testimony. Gilmore v. McGill, Inc., 491 So.2d 863, 866 (Miss. 1986). McBride asks this Court to remand for the presentation of testimony of which he had knowledge prior to trial and could have presented in his case-in-chief. McBride also had knowledge prior to trial of the deposition of Mike Herndon, in which Mike stated that McBride had been standing too close to the operation, and as such, McBride should have had knowledge of the likelihood that this issue would arise at trial. It can not be said that the trial judge abused his discretion in not allowing this rebuttal testimony, and this assignment of error is therefore rejected.
D. Whether McBride was entitled to certain jury instructions regarding the liability of Chevron.
McBride asserts that the trial court erred in failing to grant jury instructions P-1, P-9, P-10, and P-15. All four of these jury instructions were peremptory in nature. Under the appropriate standard of review, this Court will consider:
the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, [we are] required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of their impartial judgment might have reached different conclusions, affirmance is required.
Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss. 1993) [citing Munford Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss. 1992)].
Where there is conflicting evidence, the jury should be instructed in a manner which allows them to make the decision whether negligence occurred. After reviewing the instructions in question, this Court finds that the jury was properly instructed as to the issues in question. Accordingly, this assignment is without merit.
V. CONCLUSION
McBride makes a compelling argument to this Court regarding verdict reductions between the plaintiff and non-settling tortfeasors. Persuasive authority from other states indicates that the settlement-first method, whereby the settlement is first deducted and then apportionment occurs, is the approach which renders a fairer result. This opinion is limited, however, to cases in which, as here, the trial court instructed the jury to consider only the relative culpabilities of the plaintiff and the non-settling defendant(s) in apportioning fault under comparative negligence principles. This Court adopts such method, and therefore, remands the case for a reassessment of the damages calculation. All other assignments are without merit.
AFFIRMED IN PART; REVERSED AND REMANDED FOR ASSESSMENT OF DAMAGES CALCULATION.
DAN M. LEE, C.J., SULLIVAN, P.J., and PITTMAN, BANKS, McRAE, JAMES L. ROBERTS, Jr., and SMITH, JJ., concur.
MILLS, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/250304/ | 275 F.2d 596
Arthur S. FLEMMING, Secretary of Health, Education and Welfare of the United States, Appellant,v.Helmer F. LINDGREN, Appellee.
No. 16131.
United States Court of Appeals Ninth Circuit.
January 20, 1960.
George C. Doub, Asst. Atty. Gen., Alan S. Rosenthal, Douglas A. Kahn, Attys., Dept. of Justice, Washington, D. C., C. E. Luckey, U. S. Atty., Portland, Or., for appellant.
Jacob, Jones & Brown, Eugene E. Feltz, Portland, Or., for appellee.
Before POPE, CHAMBERS and HAMLEY, Circuit Judges.
CHAMBERS, Circuit Judge.
1
Lindgren is a small Oregon chicken farmer. He was self-employed through 1952. He wasn't particularly prosperous and, like millions of other Americans, wanted to share in the beneficences of social security payments. As the law stood in 1952, in his agricultural self-employment he couldn't obtain the benefits.1 As of then, the objective was a salary of $300 per month for six quarters.2 With that, and having attained the age of 65, he would then be eligible for the maximum amount of social security, provided he did not thereafter earn over $75 per month,3 later raised to $100.
2
A lawyer found Lindgren an old unused corporation (cheaper than a new one), changed its name to Lindgren and Company, and issued the stock to Lindgren, his wife and a stepson. Immediately, Lindgren's salary as president was fixed at $300 per month and the corporation then engaged in what had been Lindgren's chicken business.
3
By the fall of 1954, Lindgren was ready for his benefits. So his salary was reduced to $75. (Later when the law permitted earnings of $100 per month, up went the salary to that amount.)
4
We must start with the point that had Lindgren's business been prosperous enough to justify a salary of $300 a month, the law is so written that Lindgren would be entitled to just the "pension" he says he was. But the secretary questioned Lindgren's claim. After an appropriate hearing before an examiner, the secretary found that the net income of the corporation really was just a total of $744.84 for 1953 and 1954. This, it was said, would be deemed Lindgren's wages for the period — because it was the amount honestly available to pay wages. So Lindgren would be allowed social security payments based upon this meager amount.
5
Lindgren then filed his action in the United States District Court4 to overturn the secretary's award. The district court, relying on MacPherson v. Ewing, D.C.N.D.Cal., 107 F.Supp. 666, overturned the secretary's award as arbitrary and capricious and entered judgment that the benefits should be paid on the basis of the salary paid.
6
We are in full agreement with neither. Certainly the administrator of the plan must be permitted to look through form to substance. Surely it would not be permissible for relatives to set up a corporation for six months, pay a ne'er-do-well a salary of $300 a month for six quarters and have him do absolutely nothing (if provable) from beginning to end, then shift the burden of his support to the government. And where Lindgren, as the only real owner of Lindgren and Company, was using this rather shallow corporate device, the government was entitled to take not one, but several long looks at it.
7
We realize that in his recommendations to the secretary the examiner came up with a handy rule — limit the salary to the amount of the earnings of the company, such being the amount that the corporation with negligible capital could sensibly afford to pay. Unless the corporation is held a complete sham and is entirely vitiated, in which case Lindgren would be back in his agricultural self-employed category ineligible for the benefits,5 we think that the secretary should have taken into account some other factors — because the test is, What is "wages" under the act?6 He should reconstruct a reasonable wage under all of the circumstances. These might include past history of the same little business, wages of a laborer doing the same type of work as Lindgren, and perhaps a number of other factors will come to mind. Probably no one single factor should control.
8
It does appear that perhaps in the two years involved, economics were against Lindgren more than usually. The corporation did have a few assets. In the long run a corporation's earning record limits the salaries it can pay, but some pay more than they can afford for a while and then go out of business, or often they survive to become profit-making organizations. And persons nonetheless have had help in getting social security — all as a byproduct of the overpayment.
9
We realize the scope of the review by the district court and by us is limited.7 But we do hold that an arbitrary standard was applied when no factor other than the exact actual earnings of the corporation was applied. Our decision still leaves the administrator of the act broad latitude for the exercise of his discretion.
10
The secretary concedes that if we should reverse, a new hearing should be held in the district court because that court did not consider Lindgren's claims that the examiner did not adequately calculate the earnings of the company, the commissioner's yardstick.
11
We are of the opinion that the district court should send the matter back to the secretary for a redetermination.
12
Reversed for proceedings consistent with this opinion.
Notes:
1
42 U.S.C.A. § 411(a) (2) prior to amendment of September 1, 1954, Public Law 761, 68 Stat. 1052 et seq
2
42 U.S.C.A. § 415(a) (1) and § 409(a) prior to amendment of September 1, 1954, Public Law 761, 68 Stat. 1052 et seq
3
42 U.S.C.A. § 403(b) (1) prior to amendment of September 1, 1954, Public Law 761, 68 Stat. 1052 et seq
4
Jurisdiction was in the district court by virtue of 42 U.S.C.A. § 405(g)
5
That is, as of the time he sought to qualify
6
42 U.S.C.A. § 409
7
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; Ferenz v. Folsom, 3 Cir., 237 F.2d 46
13
POPE, Circuit Judge.
14
I, too, would reverse with directions to remand to the Secretary for a redetermination, but I would do it for a different reason and for a different purpose.
15
I do not quite understand the referee's reference to Gancher v. Hobby, D.C., 145 F.Supp. 461, for it is plain his decision was not based on any finding that the corporation was a sham. His findings indicate otherwise. He says, "It is unquestioned here that as an officer of Lindgren and Company, commencing in February, 1953, the claimant was in an employment relationship within the meaning of § 210 of the Social Security Act, and specifically § 210(K) (1) [42 U.S.C.A. § 410]."1 He "assumes good faith on the part of the claimant."
16
He could not do otherwise upon the record he had before him. In Rhoads v. Folsom, 7 Cir., 252 F.2d 377, 380, the court stated the principle which must govern here: "It may be true that the arrangement by which Mr. and Mrs. Rhoads were each to be paid was for the purpose of bringing them within the coverage of the Social Security Act. Even so, we see no legal impropriety in their so doing if in fact they both rendered services for which they were paid in accordance with an agreement. It has often been held that a taxpayer may arrange his business affairs in any manner which the law permits in order to avoid the payment of a tax. Applying the same principle, we think Mr. and Mrs. Rhoads could properly enter into an agreement with the lumber companies by which they would each become employees and be paid for their services. The terms of that agreement were a matter for the parties and binding, providing, of course, it was made in good faith. There is no proof, not even the contention, that it was otherwise made."
17
The court's reference to a similar rule relating to taxpayers is an apt one. The taxpayer's desire to reduce his taxes is irrelevant; his motive "is not the crucial factor". Gilbert v. Commissioner, 2 Cir., 248 F.2d 399, 404-405, where the court cited a number of cases to the effect that "it is too well settled to require discussion that legal transactions cannot be upset merely because the parties have entered into them for the purpose of minimizing or avoiding taxes which might otherwise accrue."
18
The same principle applies here. As stated in Rafal v. Fleming, D.C.E.D.Va., 171 F.Supp. 490, 492: "It is conceded by all parties that there is nothing improper or questionable about a person entering bona fide employment for the express purpose of acquiring a wage record which will enable him to qualify for an old-age insurance benefit, and that such action is clearly within the spirit, as well as the letter, of the law." I have no doubt that it is a common practice deliberately to fix a wage in such an amount as will qualify the employee for social security benefits. But if the recipient is really an employee, and really does work as such, the amount of the wage is none of the business of the Secretary. And it was no concern of his if Lindgren here chose to set up a corporation and became its employee, if, as is conceded, he "was in an employment relationship."
19
It seems to me to be equally clear that the Referee's findings were based solely upon the fact that during two years, 1953 and 1954, the corporation's earnings were not sufficient to pay the salary. The decision was supported by no other facts or findings. In my view that is not enough. Many a newly formed corporation does business for several years at a loss. But it has to pay wages and salaries just the same.2 No one would question that employees paid during those times were fully qualified for social security benefits.
20
Here, of course, we cannot ignore the fact that the corporation continued an existing business, much as it had been carried on before. If it were found that the size and character and potentialities of that business were such that Lindgren must have known that the business could never pay a salary sufficient to qualify him, and if, in consequence it were found and concluded that the employment was only a simulated one, then the situation would be otherwise. But we do not have any such information. All we know is what was earned during two years. We can infer that in prior years Lindgren made a living in some amount and even accumulated savings (as he had money to loan the corporation), but we distinctly do not have information to warrant a conclusion that the business could never hope to provide his salary.
21
For this reason I think the district judge was right in disapproving the Secretary's action. I think this does not require affirmance of the judgment, for, under Title 28 U.S.C.A. § 2106, we are authorized to "require such further proceedings to be had as may be just under the circumstances." And the district court under Title 42 U.S.C.A. § 405(g) "may, at any time, on good cause shown, order additional evidence to be taken before the Secretary * * *." I would guess that in the past this claimant in operating his chicken business must have made that business not only feed the chickens but feed himself; otherwise I would think he would not be in the business. At this time it surely does not appear that the arrangement which he made for a corporation and the payment of a salary was a sham because there was absolutely no prospect whatever of the business being sufficient to pay a salary.
22
I think the parties should have the chance to adduce additional evidence, if they have it. This simply means that it is my view that where an administrative officer's decision is reviewed by the district court and properly held erroneous, it is proper for the court to remand for further action at the administrative level.
Notes:
1
This is what distinguishes this case from such cases as Stark v. Flemming, D.C. Cal., 181 F.Supp. 541, 542. In that case it appeared that the president of a newly formed corporation, an elderly lady whose leased out farm was the only corporate asset, really performed no substantial work or service — they were "minimal in extent." The finding was that there was "not in fact a bona fide employment for salary or wages."
2
In Vegetable Farms v. Commissioner, 9 Cir., 191 F.2d 677, two Japanese who had been placed in a concentration camp during the war with Japan, and whose corporation had disposed of all its property, in 1943 and 1944 again became directors and officers of the corporation and devoted their efforts to an attempt to resume a business which had vanished. This court disapproved the commissioner's disallowance of their salaries during those years. We said: "Even though the taxpayer had disposed of and leased all of its property, it had a right to attempt to resume the business in which it had been successful." 191 F.2d at page 679. In other words, the fact that the corporation had no business in those years was no reason for denying it deductions for salaries paid during its attempt to get started | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2241917/ | 685 N.E.2d 325 (1997)
177 Ill.2d 185
226 Ill.Dec. 222
Ernie TALARICO, Jr., Appellee,
v.
Frank E. DUNLAP, M.D., et al., Appellants.
No. 81459.
Supreme Court of Illinois.
September 11, 1997.
*326 Jennifer A. Keller, Cassiday, Schade & Gloor, Chicago, for Frank E. Dunlap, M.D., Dixie Ashland Dermatology, Ltd.
Michael W.Rathsack, Chicago, for Ernie Talarico, Jr.
Marion A.Morawicz, Karr & Morawicz, Chicago, for Illinois Trial Lawyers Association.
Chief Justice FREEMAN delivered the opinion of the court:
The issue presented in this appeal is whether defensive collateral estoppel may be utilized by the defendant in this civil case to bar litigation of an issue which was decided adversely to the plaintiff in the plaintiff's prior criminal proceeding.
FACTUAL AND PROCEDURAL BACKGROUND
In 1986 Ernie Talarico was a second-year medical student at the Chicago College of Osteopathic Medicine. Talarico suffered from severe acne for many years. As a result of his acne, Talarico avoided social situations, became depressed, and was embarrassed and extremely uncomfortable in clinical work situations where he and his fellow students had to "work on each other." In June of 1986, Talarico sought medical treatment for his acne condition from Dr. Frank Dunlap at Dixie-Ashland Dermatology Associates, Ltd. Dunlap prescribed Accutane, which had some side effects, for the condition. Talarico used the Accutane from June 6, 1986, until September 1986.
On August 21, 1986, Talarico visited a forest preserve, grabbed a 15-year-old male, pushed him to the ground, and shocked him with a stun gun. Later, on August 27, 1986, Talarico again visited a forest preserve where he stunned a 25-year-old man with a stun gun. Talarico and the man fell to the ground; Talarico grabbed the man's genitals and kissed him several times on the face. Up until these occurrences, Talarico had no involvement with the criminal justice system.
Subsequent to these occurrences, Talarico was arrested and charged with aggravated battery, aggravated unlawful restraint, armed violence and aggravated criminal sexual abuse. At the criminal proceeding, Talarico entered into a plea agreement whereby he pleaded guilty to two counts of misdemeanor battery. Talarico stipulated to the facts concerning his crimes. Further, he admitted to having committed the crimes "intentionally and knowingly, without legal justification."
After proper admonishment pursuant to Supreme Court Rule 402 (134 Ill.2d R. 402), the court accepted defendant's plea. In exchange for his plea, Talarico was sentenced to one-year misdemeanor probation, ordered to undergo psychiatric counseling and assessed fees.
Some time following the completion of the criminal proceedings, Talarico received a pardon from the Governor. The pardon provided that Talarico was "acquitted and discharged of and from all further imprisonment and restored to all the rights of citizenship which might have been forfeited by the conviction."
Talarico subsequently filed a four-count, first-amended civil complaint in the circuit court of Cook County. The first three counts of the complaint were lodged against Roche Laboratories, the manufacturer of Accutane, and the remaining one count was *327 lodged against Dr. Dunlap, the prescribing physician, and Dixie-Ashland Dermatology Associates, Ltd. Roche Laboratories entered into a settlement agreement with Talarico. As a result of the settlement, the first three counts of the complaint were dismissed with prejudice.
The remaining one count against Dr. Dunlap and Dixie-Ashland (collectively, Dunlap) alleged that Dr. Dunlap prescribed medication with known side effects and subjected Talarico to unnecessary risk. Further, the complaint alleged that Dr. Dunlap failed to properly monitor Talarico's condition. The complaint alleged that, as a result of these failings, Talarico was injured and "[t]hat in part those injuries included alleged criminal activity for which [Talarico] was charged."
The complaint additionally alleged that the aforementioned injuries caused Talarico to "incur legal obligations for medical and related services, has caused him to lose profits and earnings which he otherwise would have made and acquired; has caused him to lose educational advantage which he would otherwise have acquired; has caused him to suffer pain and disability; all of which injuries and conditions are permanent."
In answer to Talarico's complaint, Dunlap moved the court for summary judgment (735 ILCS 5/2-1005 (West 1994)) on the basis that Talarico's guilty plea in the criminal proceeding collaterally estopped him from claiming that Accutane proximately caused his criminal behavior. The court granted summary judgment in Dunlap's favor. Talarico stipulated that the court's ruling disposed of the entire case.
The appellate court reversed the order of summary judgment (281 Ill.App.3d 662, 217 Ill.Dec. 481, 667 N.E.2d 570), and we granted Dunlap's petition for leave to appeal (155 Ill.2d R. 315(a)). The Illinois Trial Lawyers Association was granted leave to file an amicus curiae brief in support of Talarico. 155 Ill.2d R. 345. For the reasons which follow, we now affirm the judgment of the appellate court.
DISCUSSION
This case comes to us on the appeal from a ruling on Dunlap's motion for summary judgment. Our review is, therefore, de novo. See Delaney v. McDonald's Corp., 158 Ill.2d 465, 467, 199 Ill.Dec. 696, 634 N.E.2d 749 (1994), citing Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992).
Pardon
The parties concede that the Governor's pardon of defendant has no effect on the legal question presented in this appeal. They have advanced no argument on the issue. Further, the appellate court expressly noted that its decision was without regard to the pardon's effect. See 281 Ill.App.3d at 668, 217 Ill.Dec. 481, 667 N.E.2d 570. As part of our review, nevertheless, we have briefly considered the pardon's nature and effect.
In that regard, we note the following. Some courts have held that a pardon not only relieves the punishment for the offense but blots out the existence of the guilt of the offender. 67A C.J.S. Pardon and Parole § 18 (1978). This court, however, has held that a pardon merely releases an inmate from custody and supervision. People ex rel. Abner v. Kinney, 30 Ill.2d 201, 205, 195 N.E.2d 651 (1964). Since the very essence of a pardon is forgiveness or remission of penalty, assessed on the basis of the conviction of the offender, a pardon implies guilt; it does not obliterate the fact of the commission of the crime and the conviction thereof. 67A C.J.S. Pardon and Parole § 18 (1978). In other words, a pardon "involves forgiveness but not forgetfulness." 29 Ill. L. & Prac. Pardons § 1, at 109 (1957); see also People v. Chiappa, 53 Ill.App.3d 639, 640, 11 Ill.Dec. 317, 368 N.E.2d 925 (1977). The law in Illinois, though slight, supports a conclusion that Talarico's pardon did not negate the fact of his criminal conviction for purposes of collateral estoppel.
Collateral Estoppel
Dunlap argues that Talarico should be collaterally estopped from "relitigating" in this civil suit the issue of the cause of his criminal conduct, which was decided in the prior criminal proceeding.
*328 Collateral estoppel is an equitable doctrine. Application of the doctrine precludes a party from relitigating an issue decided in a prior proceeding. Herzog v. Lexington Township, 167 Ill.2d 288, 212 Ill.Dec. 581, 657 N.E.2d 926 (1995). Offensive use of collateral estoppel occurs when a plaintiff seeks to foreclose a defendant from litigating an issue the defendant has previously litigated unsuccessfully in another action. Defensive use of the doctrine occurs when, as in this case, a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost. In re Owens, 125 Ill.2d 390, 397, 126 Ill.Dec. 563, 532 N.E.2d 248 (1988).
The minimum threshold requirements for the application of collateral estoppel, as set forth in Illinois State Chamber of Commerce v. Pollution Control Board, 78 Ill.2d 1, 7, 34 Ill.Dec. 334, 398 N.E.2d 9 (1979), are: (1) the issued decided in the prior adjudication is identical with the one presented in the suit in question, (2) there was a final judgment on the merits in the prior adjudication, and (3) the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication. A previous requirement of "identical-parties-mutuality" has been eliminated. See Illinois State Chamber of Commerce, 78 Ill.2d at 7, 34 Ill.Dec. 334, 398 N.E.2d 9.
For collateral estoppel to apply, a decision on the issue must have been necessary for the judgment in the first litigation, and the person to be bound must have actually litigated the issue in the first suit. A. Vestal, Issue Preclusion and Criminal Prosecutions, 65 Iowa L.Rev. 281, 288-89 (1980). Even where the threshold elements of the doctrine are satisfied and an identical common issue is found to exist between a former and current lawsuit, collateral estoppel must not be applied to preclude parties from presenting their claims or defenses unless it is clear that no unfairness results to the party being estopped. Kessinger v. Grefco, Inc., 173 Ill.2d 447, 467-68, 220 Ill.Dec. 137, 672 N.E.2d 1149 (1996); see also Van Milligan v. Board of Fire & Police Commissioners, 158 Ill.2d 85, 96, 196 Ill.Dec. 665, 630 N.E.2d 830 (1994).
In deciding whether the doctrine of collateral estoppel is applicable in a particular situation, a court must balance the need to limit litigation against the right of a fair adversary proceeding in which a party may fully present his case. 50 C.J.S. Judgments § 779 (1997). In determining whether a party has had a full and fair opportunity to litigate an issue in a prior action, those elements which comprise the "`practical realities of litigation'" must be examined. 47 Am.Jur.2d Judgments § 651 (1995). In some circumstances the absence of an incentive to vigorously litigate in the former proceeding is relevant in the application of collateral estoppel. See Housing Authority for La Salle County v. Young Men's Christian Ass'n, 101 Ill.2d 246, 255, 78 Ill.Dec. 125, 461 N.E.2d 959 (1984); Restatement (Second) of Judgments § 28(5)(c) (1982); see also 47 Am. Jur.2d Judgments § 651 (1995). There must have been the incentive and opportunity to litigate, so that a failure to litigate the issue is in fact a concession on that issue. A. Vestal, Issue Preclusion and Criminal Prosecutions, 65 Iowa L.Rev. 281, 288-89 (1980).
Incentive to litigate might be absent, for instance, where the amount at stake in the first litigation was insignificant, or if the future litigation was not foreseeable. 47 Am. Jur.2d Judgments § 651 (1995). In the context of prior criminal proceedings, the seriousness of the allegations or the criminal charge at the prior hearing is a factor to be considered. If the offense charged is of a minor or trivial nature, defendant might not be sufficiently motivated to challenge the allegations made at trial and, in such a case, it might be unfair to allow collateral estoppel to be asserted later. However, even summary offenses, when they provide sufficient incentive and opportunity for a defense, may be the basis of collateral estoppel in a subsequent civil proceeding as, for instance, when they are part of another important charge. 50 C.J.S. Judgments § 922 (1997).
The parties here do not question the propriety of applying collateral estoppel to bar relitigation in a civil case of an issue previously decided in a criminal proceeding. It is generally accepted that a criminal conviction *329 collaterally estops a defendant from contesting in a subsequent civil proceeding the facts established and the issues decided in the criminal proceeding. See 50 C.J.S. Judgments § 922 (1997).
Further, the parties concede that the elements for collateral estoppel to apply have been satisfied. Concerning the identity-of-issues element of collateral estoppel specifically, Talarico admitted in the criminal proceeding that his criminal conduct was both knowing and intentional. The issue to be decided in the civil case is whether Accutane, instead, contributed to cause Talarico's criminal conduct. We agree that the mens rea element supporting Talarico's battery conviction and the proximate cause element in the malpractice suit are the same issue. Cf. Thurmond v. Monroe, 159 Ill.2d 240, 201 Ill.Dec. 112, 636 N.E.2d 544 (1994) (collateral estoppel not applied where prior traffic court proceeding determined only whether plaintiff violated a traffic statute and later civil proceeding determined who caused the resulting collision).
Where the parties differ is in their interpretation of the "incentive to litigate" exception to the collateral estoppel doctrine. Both parties rely on Bulfin v. Eli Lilly & Co., 244 Ill.App.3d 785, 185 Ill.Dec. 269, 614 N.E.2d 403 (1993), as supportive of their respective positions.
The facts in Bulfin are somewhat similar to the facts in the case at bar. There, Bulfin was charged with one count of murder in the second degree and two counts of attempted murder. Bulfin entered an "Alford plea," whereby he consented to the entry of judgment without trial, declined to provide the trial court with any factual basis for the guilty plea, but maintained his innocence. Bulfin, 244 Ill.App.3d at 786-87, 185 Ill.Dec. 269, 614 N.E.2d 403. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, (1970). Pursuant to a plea negotiation, Bulfin's charges were reduced and he was given a sentence reflective of the reduction.
Subsequent to his criminal conviction, Bulfin filed a civil complaint against two drug manufacturers, a physician and a health maintenance organization. In his complaint, Bulfin charged that drugs marketed and prescribed to him by the named defendants induced his criminal conduct.
The civil complaint was dismissed based on the doctrine of collateral estoppel. On appeal, our appellate court first noted that in Arizona, where the criminal offenses occurred, a criminal defendant is statutorily precluded from subsequently denying in a civil proceeding the essential allegations of the criminal offense upon which he was previously adjudged guilty. Further, the court noted the "incentive to litigate" exception to collateral estoppel was not applicable. In so finding, the court reasoned that Bulfin's acceptance of the plea was not out of a lack of motivation to litigate: drug-induced conduct would have been a defense to the offenses charged. Rather, Bulfin had accepted the plea to substantially reduce his potential prison term.
Talarico asserts that given the terms of the plea agreement offered him, which substantially reduced the charged offenses to a misdemeanor and carried only a sentence of probation, medical treatment and payment of fees, he had no incentive to litigate. Therefore, consistent with Bulfin, the exception should apply to defeat application of collateral estoppel.
Dunlap contends that Talarico misperceives Bulfin. Dunlap asserts that the proper focus in the incentive-to-litigate inquiry is on the crimes with which the criminal defendant is originally charged and not the charges which result from plea negotiations. Therefore, when an individual is charged with a crime for which he may be sentenced to a substantial term in prison, incentive to litigate is necessarily established by the need to defend against the charge. Citing Bulfin, Dunlap argues that "[i]t would be an anomaly to suggest that, when plaintiff abandoned his defense, he did so out of a lack of incentive as opposed to a desire to substantially reduce his potential prison term." Bulfin, 244 Ill. App.3d at 791, 185 Ill.Dec. 269, 614 N.E.2d 403.
We reject the reasoning in Bulfin as it relates to negotiated guilty pleas and the incentive to litigate. Collateral estoppel is a flexible doctrine which defies rigid or mechanical *330 application. The question of whether a party has had a full and fair opportunity to contest a prior determination cannot be reduced to a simple formula. Warren v. McCall, 709 F.2d 1183, 1186 n.7 (7th Cir. 1983).
Ordinarily, when a fact has been admitted by a litigant, it is reasonable to presume that the fact is established and that the fact should not be subject to relitigation. We do not believe, however, that the same may be said in every case of a negotiated guilty plea.
Negotiated pleas serve an important administrative function in our criminal justice system. Such pleas, by design, dissuade litigation. A decision to accept a plea is often the result of weighing a myriad of factors, the reduction of the charge and resulting sentence being a significant factor but only one of those factors. Because in the case of negotiated pleas it does not necessarily follow that the failure to deny reflects only a defendant's desire to receive a reduced sentence, for collateral estoppel purposes consideration of more than the fact of the "admission" is required. See also 2 R. LaFave, Criminal Procedure § 20.1, at 559-60 (1984).
"The `incentive to litigate' formula, as used in most of the cases and in the Restatement Second, allows a party who did litigate an issue to relitigate if the party can show that the original litigation was a side show rather than a struggle to the finish." (Emphasis in original.) G. Hazard, Revisiting the Second Restatement of Judgments: Issue Preclusion and Related Problems, 66 Cornell L.Rev. 564, 584 (1981). Under that approach, the party may rebut the inference naturally drawn from the fact that the issue was actually litigated, that is to say, the inference that the party had treated the issue with entire seriousness in the first litigation. See 66 Cornell L.Rev. at 584; see also Restatement (Second) of Judgments § 28 (1982).
We believe that the Restatement offers the proper focus for the incentive-to-litigate inquiry. We therefore consider whether the inference which flows from Talarico's admission that his conduct was intentional and knowing was "treated with entire seriousness" or may now be rebutted. In so doing, we are mindful that the refusal to give Talarico's criminal judgment preclusive effect should not occur without a compelling showing of unfairness, nor should it be based on a conclusion that the criminal judgment was erroneous. Restatement (Second) of Judgments § 28, Comment j (1982).
We have been provided with and have reviewed the record of proceedings in Talarico's criminal case. As a result of that review, we conclude that only in the most technical sense was Talarico's guilty plea an admission that his criminal conduct was knowing and intentional. The record makes apparent that the plea was a compromise: never is it conceded that Accutane was not the contributing factor to Talarico's criminal conduct. In fact, it appears that both the trial court and the State's Attorney were made aware of the use of the Accutane and Talarico's theory concerning its effects.
Specifically, in mitigation, defense counsel offered that prior to Talarico's taking Accutane, he had had no problems and no criminal background. He further commented that Accutane had been found to cause aggressive behavior. In response to the court's query as to whether the medication had been taken off of the market, defense counsel responded in the affirmative. In pronouncing sentence, the trial court commented that misdemeanor probation was an appropriate disposition in light of the "very strange circumstances involved" in the case. The court further noted that those circumstances had been "documented * * * to the State's Attorney office." Incidentally, Dunlap refuted the statement made at the criminal proceeding concerning Accutane having been taken off the market.
Also telling on the incentive-to-litigate issue is the generousness of the plea offer. Talarico was originally charged with aggravated battery, aggravated unlawful restraint, armed violence, and aggravated criminal sexual abuse. A conviction for these offenses carried a substantial sentence. Apparently pursuant to the plea agreement, the two counts of aggravated battery were amended to charge only two counts of "simple battery," and the remainder of the charged offenses were nol-prossed. The trial court, accepting the agreement, imposed a sentence *331 of one-year misdemeanor probation, psychiatric counseling and fees. Significantly, at the time of the criminal proceedings, defense counsel offered that Talarico was a second-year medical student. Any term of imprisonment would have delayed his studies.
We note further that prior to the criminal proceedings, Dunlap wrote to the State's Attorney on behalf of Talarico. In that letter, Dunlap requested leniency for Talarico, whom he characterized as "intelligent, rational and of a very mild demeanor." Dunlap stated with certainty that there were extenuating circumstances pertaining to the charges against Talarico; Dunlap stated that he would never characterize Talarico as either aggressive or dangerous.
Further, it appears that a subsequent civil suit against Dunlap was not, at the time of the criminal proceedings, foreseeable. In an affidavit filed by Talarico's criminal trial attorney, counsel averred that at the time he advised Talarico concerning the plea, counsel believed that Roche was the only party potentially liable for Talarico's violent behavior. Counsel stated that he had neither an indication nor a suspicion of any malpractice on the part of Dunlap.
Finally, although we have concluded that the pardon does not negate the finding of Talarico's guilt, it nonetheless merits favorable consideration as it relates to the inference to be drawn from his admission of guilt.
The above facts, i.e., the significant reduction in the charges and sentence, Talarico's status as a student, the unforseeability of future civil liability, consideration given by the trial court of the mitigation evidence, including the use of Accutane, as well as Dunlap's own statement to the State's Attorney regarding Talarico's demeanor, combine to rebut the inference that Talarico's admission on the issues of intent and knowledge was treated by him with entire seriousness. We believe that the incentive to litigate the criminal offense was not fully present here. Therefore, collateral estoppel should not apply.
Had the issue concerning Accutane and its side effects not been an issue in the criminal proceeding, it would perhaps merit less consideration here. However, the issue having been first raised in the criminal proceeding, it would be patently unfair to now disregard it as a factor having contributed to the circumstances and particulars of the plea offer and acceptance.
Incidentally, while in Bulfin criminal trial counsel averred that he and Bulfin had reason to believe that Bulfin's criminal conduct had been drug induced, we do not notice in Bulfin any indication that the issue of drug-induced conduct was a part of the plea negotiations or made known to the trial court.
As a final note on the incentive-to-litigate inquiry generally, we believe it would be unfair to create a situation in which a criminal defendant who, after balancing the costs and risks of trial, chooses to accept a plea negotiation is said to automatically forfeit his right to a civil trial. A refusal to look behind the curtain of the negotiated guilty plea is to require every criminal defendant with a potential civil suit to proceed with criminal trial, regardless of the risks. Moreover, to rigidly permit application of the collateral estoppel doctrine in cases involving negotiated pleas will have a chilling effect on the acceptance of such pleas. To do equity requires simply that every available fact surrounding a negotiated guilty plea be examined prior to permitting the preclusive effect of the doctrine to apply.
Dunlap further argues that it would be unfair to permit Talarico to reap the benefits which flowed from his negotiated guilty plea and to then be permitted to deny the validity of that plea. If in fact it is conclusively determined that the Accutane was the cause of Talarico's criminal conduct, and we make no determination in that regard, we do not perceive that Talarico has benefitted. Not to be forgotten are the facts that Talarico, although pardoned, suffers the burdens attendant to having a criminal record and has had to endure the costs, both financial and emotional, of defending against criminal charges.
Finally, Dunlap argues that to deny preclusive effect in this case would set bad public policy in Illinois. On the contrary, we believe that the doctrine of collateral estoppel remains intact and, as it should be, is used sparingly, on a case-by-case basis, and *332 only when equity requires. 47 Am.Jur.2d Judgments § 651 (1995). Moreover, we notice no unfairness to Dunlap, who, heretofore, has not been subject to litigation involving the issue of the effect of Accutane on Talarico. On the contrary, if in fact Accutane caused Talarico's criminal conduct, any unfairness in precluding relitigation would have been borne solely by Talarico.
CONCLUSION
By our holding we do not establish a bright line rule with respect to plea negotiations in the context of collateral estoppel. Application of the doctrine must be determined on a case-by-case basis, after consideration of all of the available factors. We simply hold that, on the particular facts of this case, Talarico had no incentive to litigate the criminal charges against him. That being the case, to bar Talarico's civil suit against Dunlap would deprive Talarico of his day in court and unfairly advantage Dunlap. Therefore, for all of the foregoing reasons, we affirm the judgment of the appellate court.
Appellate court judgment affirmed.
Justice McMORROW, dissenting:
In his guilty plea, Talarico unconditionally conceded that he had the requisite mens rea to commit the violent offenses charged. In essence, when he pled guilty to the reduced criminal charges, Talarico admitted that he intentionally and knowingly, without legal justification, pushed a 15-year-old boy to the ground and shocked him with a stun gun, and a week later, again without legal justification, shocked a 25-year-old man with a stun gun, grabbed his genitals, and kissed him several times on the face. When he pled guilty to the reduced charges, he deliberately and knowingly forfeited the opportunity to assert that his violent conduct was actually caused by a third party's negligence in prescribing an acne medication. In the instant medical malpractice action, however, Talarico repudiates his admission of criminal intent and seeks compensatory damages arising out of his own criminal conduct. Talarico should not be allowed to use the judicial system to have it both ways.
In my opinion, the decision of the majority invites the rancor of the community toward the legal profession and justice system. I believe that under the facts of this case, there is no legal justification for subjecting Dr. Dunlap and Dixie-Ashland to the expense and stress of trial, nor is there any justification for subjecting the taxpayers to the expense incurred by the use of the courts and resources of the state to litigate an issue which had previously been litigated. In my view, today's majority opinion sets an unfortunate precedent that is contrary to sound public policy, legal principles, and fairness. Through a flawed application of the doctrine of collateral estoppel, the majority permits Talarico to maintain contrary legal positions in two different lawsuits, thereby compromising the finality of the judgment, the integrity of the guilty plea, judicial economy, and fairness to the defendants in this case. Accordingly, I dissent.
As the parties concede, the majority acknowledges, and as the circuit court and appellate panel held, the elements of collateral estoppel are present in this case. The majority opinion expressly acknowledges that the "mens rea element supporting Talarico's battery conviction and the proximate cause element in the malpractice suit are the same issue." Why, then, should Talarico be allowed to proceed with his claim that the proximate cause of his violent attack on the victims was Dr. Dunlap's negligent prescription and monitoring of Accutane?
The majority's answer to this question relies entirely upon a strained application of the principle that collateral estoppel does not preclude relitigation of an issue if the party against whom the doctrine is asserted lacked sufficient incentive to litigate the particular issue in the first lawsuit. According to the majority, the incentive to litigate concept, as interpreted in the Restatement (Second) of Judgments § 28 (1982), permits relitigation of an issue "`if the party can show that the original litigation was a side show rather than a struggle to the finish.'" 177 Ill.2d at 196, 226 Ill.Dec. at 227, 685 N.E.2d at 330, quoting G. Hazard, Revisiting the Second Restatement of Judgments: Issue Preclusion and Related Problems, 66 Cornell L.Rev. *333 564, 584 (1981). I do not believe that the admissions defendant made while represented by his attorneys in his negotiated plea should be viewed as a "side show"; the stakes for the people of this state, as well as the defendant, are too high in a criminal prosecution to assume that plea negotiations are anything less than a "struggle to the finish." Rather, such negotiations are a joint effort by the court, the prosecutor, and defense attorney to thoughtfully and knowingly resolve complex guilt and sentence issues fairly. Since Talarico cannot show that the original criminal litigation was a side show, his current attempt to relitigate the issue of his criminal intent falls outside the scope of the incentive to litigate exception to collateral estoppel.
According to the majority, however, Talarico may proceed with his claim against Dr. Dunlap because "only in the most technical sense was Talarico's guilty plea an admission that his criminal conduct was knowing and intentional." 177 Ill.2d at 196, 226 Ill.Dec. at 227-28, 685 N.E.2d at 330-31. The majority reasons that the negotiated plea was a compromise in which Talarico never conceded that Accutane was not the contributing cause of his criminal conduct.
I question the precise sense in which Talarico's unequivocal admission of his engagement in intentional and knowing criminal conduct can be deemed a mere technicality. On the contrary, such an admission goes to the heart of the issue of Talarico's criminal responsibility. With respect to the majority's characterization of Talarico's guilty plea as a "compromise," such observation is singularly unhelpful because in this context compromise is an essential component of negotiations. That Talarico made a calculated assessment of the risks of asserting the Accutane defense does not mean he lacked incentive to litigate the issue. Significantly, the fact that Talarico did not expressly concede in his guilty plea that Accutane did not cause his violent behavior is legally irrelevant because such a concession is implicit in his admission of intentional criminal conduct.
Although there may be instances in which a person's guilty plea in a criminal matter does not preclude that party from pursuing a civil claim which partly depends on facts admitted in the guilty plea, this is not such a case. At the time of his negotiated guilty plea, Talarico and his criminal defense attorneys were well aware that he had been under treatment with Accutane. Indeed, the record reveals that months before Talarico began his own treatment with Accutane, he had spent 100 to 200 hours researching the effects of Accutane while participating in a research project on that topic at his medical school. Accordingly, at the time of his guilty plea, Talarico possessed significant information from which to evaluate the merits of an Accutane-impairment defense. If Talarico proved his theory that negligently prescribed Accutane caused his criminal acts, thereby negating his criminal intent, he would have been entitled to outright acquittal. However, Talarico instead chose to plead guilty to reduced charges, and benefit from a sentence that included psychiatric treatment and probation. Having made that decision, Talarico should not now be permitted to pursue a lawsuit that places the blame on others and thereby repudiate his admittedly intentional criminal acts.
The instant case is virtually indistinguishable from Bulfin v. Eli Lilly & Co., 244 Ill.App.3d 785, 185 Ill.Dec. 269, 614 N.E.2d 403 (1993), where the appellate court rejected a similar attempt by a plaintiff who, after pleading guilty to criminal charges, subsequently sought damages in a civil lawsuit based on the allegation that certain medications manufactured by defendant had induced an intoxicated state that caused him to commit criminal acts, through no fault of his own. The plaintiff in the civil suit in Bulfin, like plaintiff in the case at bar, knew at the time of his criminal proceedings that he might have a complete defense and be acquitted based on the use of the medications. In light of an offered plea negotiation, however, he forfeited the drug-induced impairment issue, and pleaded guilty to manslaughter and aggravated assault. After reviewing the elements of collateral estoppel and the incentive to litigate exception, the appellate court in Bulfin held that the plaintiff had been afforded a full and fair opportunity in the criminal case to litigate the issue of whether *334 his actions resulted from an involuntarily induced state of intoxication. Accordingly, the appellate court held that the civil suit was properly dismissed on the basis of collateral estoppel. The Bulfin court observed that the incentive to litigate a complete defense to criminal charges is present in every case in which a person potentially faces a prison term for such charges and that "[i]t would be an anomaly to suggest that, when plaintiff abandoned his defense, he did so out of a lack of incentive as opposed to a desire to substantially reduce his potential prison term." Bulfin, 244 Ill.App.3d at 791, 185 Ill.Dec. 269, 614 N.E.2d 403.
Without distinguishing the facts in Bulfin or explaining where the appellate court's analysis was flawed, the majority in the instant case expressly rejects the reasoning in Bulfin "as it relates to negotiated guilty pleas and the incentive to litigate." 177 Ill.2d at 195, 226 Ill.Dec. at 226-27, 685 N.E.2d at 329-30. In so doing, the majority overlooks the strong policy concerns which arise when a criminal defendant is allowed to plead guilty to intentional or knowing crimes, and then subsequently to deny his criminal guilt for purposes of pursuing, in civil litigation, financial compensation for the consequences of his own criminal conduct. Justice and equity cry out for the application of collateral estoppel to the facts of this case.
Some of those concerns have been recognized by other jurisdictions. For example, in Cole v. Taylor, 301 N.W.2d 766, 768 (Iowa 1981), the Iowa court rejected on public policy grounds a convicted defendant's subsequent claim in a civil suit that her psychiatrist's negligent treatment caused her to commit the crime. In a similar vein, a New York court cautioned that courts should not be expected to look behind knowing and voluntary pleas of guilt to relieve defendants from adverse civil consequences that may follow from the defendants' admissions of guilt to serious criminal charges. Merchants Mutual Insurance Co. v. Arzillo, 98 A.D.2d 495, 472 N.Y.S.2d 97 (1984). The court held, "As long as the guilty plea stands, the defendant is guilty and cannot be heard to say otherwise." Merchants Mutual Insurance, 98 A.D.2d at 506, 472 N.Y.S.2d at 105. In Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1239-40 (Alaska 1983), a defendant who had been convicted of manslaughter was then sued by the victim's family for wrongful death. As a defense to the civil suit, he sought to implead the gun manufacturer on the ground that the gun was defective and had killed the victim when it discharged accidentally. The Alaska Supreme Court, in rejecting the defendant's attempt to implead the gun manufacturer, observed, "[A]llowing a criminal defendant who has been convicted of an intentional killing, to impose liability on others for the consequences of his own anti-social conduct runs counter to basic values underlying our criminal justice system." Adkinson, 659 P.2d at 1240.
The same public policy concerns enunciated in the above cases are present in the case at bar. Allowing Talarico to pursue the Accutane issue in his medical malpractice action in the case at bar creates an unwise precedent to impose on the courts of this state. Talarico waived the Accutane defense by his plea of guilt to intentional criminal conduct, and he should be bound by such admission as a matter of good law and sound policy.
By declining to impose collateral estoppel under the circumstances of this case, the majority allows a defendant to circumvent the finality of his guilty plea and to seek financial gain from third parties for his own criminal acts. Finality of judgments in negotiated plea criminal cases serves an important purpose in our criminal justice system. Once an accused who is represented by counsel decides to plead guilty to criminal charges and accept the consequences of his own conduct, he should not be able to use the civil court system to make a mockery out of the criminal proceedings by repudiating his guilty plea for pecuniary gain. The compensation that Talarico seeks in his civil suit is not limited to medical expenses or physical suffering from the side effects of Accutane. He seeks to be compensated for lost income and profit and lost educational advantage, presumably arising from Talarico's criminal conviction and the resulting impact it may have placed on his medical career. For these reasons, I find no principled basis on *335 which to apply an exception to collateral estoppel in this case.
The appellate court in Bulfin cited with approval the following:
"The clearest case for such an estoppel is where a defendant pleads guilty to a substantial criminal charge and then seeks in civil litigation concerning the same transaction to assert that he did not commit the criminal act. Particularly galling is the situation where a criminal convicted on his own guilty plea seeks as plaintiff in a subsequent civil action to claim redress based on a repudiation of the confession. The effrontery or, as some might say it, chutzpah, is too much to take. There certainly should be an estoppel in such a case." G. Hazard, Revisiting the Second Restatement of Judgements: Issue Preclusion and Related Problems, 66 Cornell L.Rev. 564, 578 (1981).
I agree with the foregoing and adhere to the basic values underlying our criminal justice system articulated in the Adkinson case. I would hold Talarico to his admissions based on collateral estoppel, and affirm the trial court's grant of summary judgment to the defendants. Accordingly, I dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1659705/ | 671 So. 2d 32 (1996)
William Joseph HOLLY
v.
STATE of Mississippi.
No. 93-DP-00263-SCT.
Supreme Court of Mississippi.
February 8, 1996.
*34 Leland H. Jones, III, Greenwood, for appellant.
Michael C. Moore, Attorney General, Jackson, Marvin L. White, Jr., Assistant Attorney General, Jackson, for appellee.
EN BANC.
McRAE, Justice, for the Court:
William Joseph Holly was convicted of capital murder, kidnapping and grand larceny by a jury of the Grenada County Circuit Court on March 3, 1993 for the July 12, 1992 slaying of David Norwood, Jr., a Grenada cab driver. After his motion for a new trial was denied, the record in Holly's appeal to this Court was filed on August 12, 1993, with an additional supplement being filed in December of 1994. Holly's brief was filed with this Court on January 26, 1995, and the State's brief, six months later, on July 31, 1995. The briefs and record were validated by the Clerk on August 21, 1995 for this Court's consideration. Having considered carefully the record before us as well as the arguments presented on Holly's behalf, we affirm the jury's verdict and sentence on the kidnapping and capital murder charges. However, since Holly was convicted of capital murder with armed robbery as an underlying offense, we find that conviction on the grand larceny charge, under the circumstances of this case, constitutes double jeopardy which prohibits multiple punishments for the same offense. Therefore, we reverse and vacate Holly's conviction for grand larceny.
FACTS
On July 12, 1992, seventeen-year-old William Holly, along with Tommy G. Benefield and Waylon Kendall, were involved in efforts to assist Holly in his professed plan to move from Grenada County to Chicago, Illinois. Holly prevailed upon Benefield to call Neely's Cab Company in Grenada to summon a cab to the local train station. At some point later, taxi driver David Norwood appeared. Holly and his friends, armed with guns supplied by Holly, entered the taxi, and according to the undisputed evidence, Holly ordered Norwood at gunpoint to drive to a secluded area. Norwood was ordered out of the car and into the woods.
Holly admitted robbing Norwood of cash and his car. On cross-examination, he also admitted to stealing money orders, but on redirect, stated that he had not done so. He further stated that he did not obtain the money orders from the person of David Norwood, but that they were on the dashboard of the cab and already had the names of the recipients on them, i.e. "South Central Bell" and "Fast-Way." Kendall, however, testified that Holly ordered Norwood to put his wallet on top of the car and further, that Holly extracted Norwood's license from the wallet, as well as cash and money orders that had been in his pocket and in the cab.
After Holly pocketed the wallet, cash and money orders from the top of the cab, he directed Norwood to march into the woods, ostensibly for the purpose of disorienting him. Kendall testified that Holly told Norwood to walk ahead of them, and when he said "go," to start running. According to Kendall, once Norwood had taken about two steps, Holly pulled the shotgun trigger and shot him.
Norwood was shot at close range in the back and in the left temple. Although Holly admitted shooting Norwood and Kendall testified that he saw him pull the trigger, Holly initially claimed that the shotgun first discharged *35 accidentally when he tripped over a tree root. He then testified that after he fired the first shot, he shot Norwood again, because "[l]ike I said, I panicked, and plus I didn't want to see the man suffer." Holly shouted, "Adios, amigo," after shooting him the second time. On cross-examination, however, Holly further stated that he had told authorities in Illinois that he had blown out his victim's heart and lungs, knowing exactly what he had hit.
Benefield testified that Holly ordered them back into the cab upon returning from the woods. They left the scene of the crime in Norwood's cab. Traveling down Highway 7 toward Coffeeville, Mississippi, the cab broke down. The trio hitched a ride to Coffeeville, and at one point were stopped by police who questioned the driver about Norwood. Once in Coffeeville, about five or six hours after the shooting, Kendall parted ways with Holly and Benefield, ran to his uncle's house and called police to report the murder. Holly and Benefield then stole a Yalobusha County, Mississippi school bus and drove to Illinois. Their journey ended with a gun battle in a Decatur, Illinois parking lot, after the two attempted to abduct a woman and her van.
On July 31, 1992, Holly was indicted for capital murder, kidnapping, and grand larceny. He was tried by a jury in the Circuit Court of Grenada County on March 2 and 3, 1993, and found guilty on all three charges. The jury specifically found that Holly murdered David Norwood, Jr. with a shotgun while in the commission of armed robbery in violation of Miss. Code Ann. § 97-3-19(2)(e)(1994). The jury subsequently sentenced Holly to death based on the following two aggravating circumstances which existed at the time of the murder: the capital murder of James David Norwood, Jr. was committed while the defendant was engaged, or was an accomplice, in the commission of an armed robbery, and Holly was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person. Judgment sentencing Holly to death was entered on March 3, 1993. Holly's motion for a new trial was denied on March 9, 1993. Holly raises sixteen issues to this Court on appeal. We find that all but one of these issues are either procedurally barred or without merit.
DISCUSSION OF THE LAW
I. WHETHER THE PROSECUTION IMPROPERLY COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY IN THE SENTENCING PHASE
"In all criminal prosecutions the accused shall ... not be compelled to give evidence against himself." Mississippi Constitution of 1890, art. III, § 26. The United States Constitution grants the same right when it states that "No person... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This right is violated by a direct statement regarding the defendant's decision not to testify, or a comment which could reasonably be construed by a jury to be a comment about the defendant's failure to testify. Griffin v. State, 557 So. 2d 542, 552 (Miss. 1990); Jimpson v. State, 532 So. 2d 985, 991 (Miss. 1988); Livingston v. State, 525 So. 2d 1300, 1305-08 (Miss. 1988).
Holly testified in the guilt phase of the trial; however, he did not take the witness stand in the sentencing phase. The testimony during the guilt phase was stipulated by both counsels to be used in the sentencing phase. During closing argument at the sentencing phase, the prosecution made several comments regarding Holly's testimony, demeanor, and lack of remorse at trial. No contemporaneous objection was made; however, after the jury began deliberations, Holly moved for a mistrial on the basis that the prosecution commented directly on his failure to testify at trial. His motion was subsequently denied. On appeal, Holly argues that the prosecution improperly commented on his failure to testify in violation of the Fifth and Fourteenth Amendments to the United States Constitution, as well as art. III, § 26 of the Mississippi Constitution.
The State maintains that Holly is procedurally barred from raising this claim on appeal since he failed to move for a mistrial during the closing argument, waiting instead until the jury retired for deliberations. A contemporaneous objection to improper argument *36 during trial is required to preserve the issue for appeal. Foster v. State, 639 So. 2d 1263, 1290 (Miss. 1994) (plurality); see also Whigham v. State, 611 So. 2d 988, 995 (Miss. 1992) (procedural bar applies unless error involves serious violation of constitutional right). We find that the defense failed to contemporaneously object and is therefore procedurally barred.
Alternatively, this assignment of error is without merit. Although Holly chose not to testify during the sentencing portion of the trial, the record shows that he testified during the guilt phase of the trial. All of the testimony introduced by the defense, including that of the defendant, was then carried over to the sentencing phase pursuant to motions from both sides who stipulated to its use. See Hill v. State, 432 So. 2d 427, 441 (Miss. 1983) (there is no error in permitting jury to consider during sentencing phase all previous evidence introduced at guilt phase).
"The prosecution is always free to discuss at length the testimony of the State's witnesses and why they are credible." Whigham, 611 So.2d at 995. Nor is a prosecuting attorney prevented from commenting on the appearance of the defendant as it existed during his testimony. Reed v. State, 197 So. 2d 811, 815 (Miss. 1967); see also Knox v. State, 502 So. 2d 672, 675 (Miss. 1987) (prosecution may comment on demeanor of defendant who personally subjects victim to extensive cross-examination).
It is apparent that each of the comments made by the prosecution were either arguments related to the credibility of the defendant's testimony and his demeanor, or in rebuttal to the arguments made by defense counsel during the sentencing phase. Holly placed his credibility before the jury by testifying during the guilt phase of the trial, and then stipulated to its use in the sentencing phase. See generally Jordan v. State, 464 So. 2d 475, 482 (Miss. 1985) (once defendant testifies to merits, prosecution is free to comment upon defendant's failure to explain the facts in evidence). The comments made by the prosecution, when read in context of Holly's testimony at trial, concerned his credibility and demeanor. While we hold that this error is procedurally barred, we also find it to be without merit.
II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT THE UNDERLYING FACTS OF A PRIOR FELONY CONVICTION WHERE SUCH EVIDENCE WAS IRRELEVANT AND WITHOUT PROBATIVE VALUE
On September 9, 1992, Holly was convicted in the State of Illinois of attempted aggravated kidnapping and attempted aggravated murder in conjunction with the July 15, 1992 incident wherein he and his friend, Benefield, attempted to abduct a woman at gunpoint in a K-Mart parking lot. The episode culminated in a gun battle with Illinois police. At the sentencing phase of the trial, the State introduced a certified judgment of the conviction. Officer Michael Beck, an investigator for the Decatur, Illinois Police Department, very briefly recited the facts behind the charges: that two white males had hidden in a van belonging to a local woman; she ran when she realized they were there; they, in turn, ran to their parked Yalobusha County, Mississippi school bus, and opened fire on officers as they approached the vehicle.
Holly filed a motion in limine to exclude this evidence from the jury. The trial judge stated that he would reserve his ruling, but noted that the evidence probably would not be allowed during the guilt phase of the trial. The record does not indicate whether the court ruled on the motion. Holly also failed to obtain a ruling on his "Motion to Bar Introduction of Any Evidence Relating to Prior Convictions or Bad Acts" filed January 13, 1992. The burden was on Holly to obtain a ruling on his motions. Billiot v. State, 454 So. 2d 445, 456 (Miss. 1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, reh. denied, 470 U.S. 1089, 105 S. Ct. 1858, 85 L. Ed. 2d 154 (1985). Holly failed to meet this obligation.
Holly's only objection to Officer Beck's testimony in the sentencing phase of the trial was raised when the investigator testified as to what another officer had seen at the scene of the incident. That hearsay objection was *37 overruled. He is further barred procedurally by his failure to make a contemporaneous objection to Officer Beck's testimony. Carr v. State, 655 So. 2d 824, 852 (Miss. 1995); Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993); Russell v. State, 607 So. 2d 1107, 1117 (Miss. 1992); Fleming v. State, 604 So. 2d 280, 292 (Miss. 1992); Cole v. State, 525 So. 2d 365, 374 (Miss. 1987); Lockett v. State, 517 So. 2d 1346, 1353 (Miss. 1987).
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING A "FLIGHT INSTRUCTION" OVER OBJECTION OF COUNSEL
Holly next contends that the circuit court erred in allowing the State to give the jury a flight instruction. Instruction S-8 provides as follows:
Flight is a circumstance from which guilty knowledge can be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the defendant, William Joseph Holly, did flee or go into hiding, such flight or hiding is to be considered in connection with all other evidence in this case. You will determine from all the facts, whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of the defendant, William Joseph Holly.
"[A]n instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge." Reynolds v. State, 658 So. 2d 852, 856 (Miss. 1995) (quoting Fuselier v. State, 468 So. 2d 45, 57 (Miss. 1985)). This Court has further explained that in determining whether a flight instruction is appropriate, two considerations are paramount:
(1) Only unexplained flight merits a flight instruction.
(2) Flight instructions are to be given only in cases where that circumstance has considerable probative value.
Banks v. State, 631 So. 2d 748, 751 (Miss. 1994) (quoting Pannell v. State, 455 So. 2d 785, 788 (Miss. 1984)). Holly contends that because his co-defendant corroborated his story that he had packed his bags for an allegedly planned trip to Chicago before abducting and shooting Norwood, his "flight" was neither unexplained nor probative of his guilt. See Mack v. State, 650 So. 2d 1289, 1308 (Miss. 1994) (flight evidence and instruction appropriate only where probative of guilt or guilty knowledge of crime charged and where there are no independent reasons for flight). He therefore likens his case to Banks. However, in Banks, as distinguished from the case sub judice, the defendant claimed to have acted in self-defense, and we determined that a flight instruction was prejudicial when self-defense was argued. Id. at 751.
The record indicates that Holly and his friends fled the scene in Norwood's cab. When it broke down, Holly and Benefield stole a Yalobusha County school bus and drove to Chicago. Once there, they attempted to abduct a woman and steal her van which ultimately led to a shoot-out with police. Corroborative evidence that Holly "planned" to move to Chicago is based on what he told Benefield and Kendall. Further, it is probative of guilt because it suggests that Holly and Benefield were attempting to flee from their crime; in the alternative, it provides a motive for the robbery that set this case in motion. We therefore find no merit to this assignment of error.
IV. WHETHER WILLIAM HOLLY WAS DENIED A FUNDAMENTALLY FAIR TRIAL WHERE THE STATE WAS ALLOWED TO ELICIT HEARSAY TESTIMONY FROM ROBERT KENDALL WHICH BOLSTERED THE TESTIMONY OF ACCOMPLICE/STATE'S WITNESS WAYLON KENDALL.
Holly contends that the trial court improperly allowed the prosecution to elicit inadmissible hearsay testimony from the witness Robert Kendall in order to bolster the testimony of Holly's accomplice, Waylon Kendall. The following colloquy between *38 Robert Kendall and the prosecuting attorney transpired during trial:
A. He [Waylon Kendall] was running scared for his life.
Q. What did he tell you at that time?
BY MR. JONES: Objection to hearsay.
BY THE COURT: Objection is overruled.
A. He told me that he was just escaped from Bill Holly, that had him in his he was had him hostage, or something or other. I don't know the exact word for it.
Q. All right. What else did he tell you?
A. And, said that they had just killed a taxi-cab driver.
BY THE COURT: Let me see counsel up here for a moment.
(REPORTER'S NOTE: Counsel approached the Bench and conferred with the Court out of the hearing of the Reporter and the jury, after which the following was placed into the record, in full hearing of jury:)
BY MR. JONES: Your honor, I ask that the same objection be continued.
BY THE COURT: Well. I'm getting ready to reverse an earlier ruling, and I will rule the last statement regarding statements made by his nephew are inadmissible, and instruct the jury to disregard that. If there is anyone who will not do that, they should indicate it to me. No one has raised their hand. All right, please continue.
Q. All right, Mr. Kendall, without saying what your nephew told you, once he told you whatever he told you, who did you carry him to? Where'd you carry him?
Although the testimony was hearsay, the trial judge wisely reversed his ruling. He followed the reversal of his ruling by admonishing the jury to disregard the improper testimony, and asking the jury members if they could disregard the testimony. All jurors indicated they would disregard the testimony. When the trial judge determines that the error does not reach the level of prejudice warranting a mistrial, the judge should admonish the jury to disregard the impropriety in order to cure its prejudicial effect. Perkins v. State, 600 So. 2d 938, 941 (Miss. 1992); Estes v. State, 533 So. 2d 437, 439 (Miss. 1988). "This Court has repeatedly and consistently held that such action is sufficient to remove any prejudice resulting from the improper testimony." Baine v. State, 604 So. 2d 249, 256 (Miss. 1992). The trial judge is permitted considerable discretion in determining whether a mistrial is warranted since the judge is best positioned for measuring the prejudicial effect. Roundtree v. State, 568 So. 2d 1173, 1178 (Miss. 1990).
Before beginning its deliberations, the jury was additionally instructed as follows:
INSTRUCTION NO. C-1
The production of evidence in court is governed by rules of law. From time to time during the trial, it has been my duty as judge to rule on the admissibility of evidence. You must not concern yourself with the reasons for the court's rulings since they are controlled and governed by rules of law. You should not infer from any rulings by the court on these motions or objections to the evidence that the court has any opinion on the merits favoring one side or another. You should not speculate as to possible answers to questions which the court did not require to be answered. Further, you should not draw any inference from the content of those questions. You are to disregard all evidence which was excluded by the court from consideration during the course of the trial.
Again, the trial judge made it clear that the hearsay testimony elicited from Robert Kendall was not to be considered by the jury. The jury is presumed to have followed the court's instructions. Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S. Ct. 843, 853 n. 6, 74 L. Ed. 2d 646 (1983).
Holly argues that the damage had been done and reversible error already committed despite the trial court's reversal of its ruling and subsequent instruction to the jury to *39 disregard excluded evidence. We find this argument to be without merit.
The hearsay testimony introduced in the case at bar does not appear to rise to the level of prejudice suggested by Holly. In fact, testimony producing similar evidence was properly introduced later at trial through Holly's "admissions" to Waylon Kendall. This Court finds that the overall prejudicial effect of the improper hearsay testimony was minimal and that any prejudicial effect was cured by the court's admonitions to the jury. Accordingly, this issue is resolved in favor of the State.
The Appellant raises three additional issues which we discuss together since they are procedurally barred.
V. WHETHER JURY INSTRUCTION S-5 AT THE GUILT PHASE RELIEVED THE STATE OF THE BURDEN OF PROVING INTENT TO COMMIT THE UNDERLYING FELONY, THEREBY VIOLATING THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND STATE LAW.
VI. WHETHER THE LEGISLATIVE MANDATE AS TO WHAT FACTORS JUSTIFY IMPOSITION OF A DEATH SENTENCE WAS FLOUTED WHEN THE PROSECUTION RELIED ON ARBITRARY FACTORS TO ADVOCATE DEATH, VIOLATING WILLIAM HOLLY'S RIGHTS UNDER MISSISSIPPI LAW AND THE EIGHTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.
VII. WHETHER THE SENTENCING INSTRUCTIONS AND PROSECUTION'S ARGUMENT VIOLATED THE EIGHTH AMENDMENT AND STATE LAW BY PREVENTING THE JURY FROM CONSIDERING RELEVANT MITIGATING CIRCUMSTANCES.
The defense is procedurally barred from asserting any error on these issues for lack of contemporaneous objection at trial to the various instructions and comments complained of Carr v. State, 655 So. 2d 824, 852 (Miss. 1995); Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993); Russell v. State, 607 So. 2d 1107, 1117 (Miss. 1992); Fleming v. State, 604 So. 2d 280, 292 (Miss. 1992); Cole v. State, 525 So. 2d 365, 374 (Miss. 1987); Lockett v. State, 517 So. 2d 1346, 1353 (Miss. 1987).
VIII. WHETHER THE SUBMISSION OF THE "ROBBERY" AGGRAVATING CIRCUMSTANCE VIOLATED STATE LAW AND THE STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT.
Instruction C-1 allowed the jury to consider as an aggravating circumstance that "[t]he capital murder of David James Norwood, Jr. was committed while the defendant was engaged or was an accomplice, in the commission of armed robbery." Apparently ignoring the United States Supreme Court's decision in Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S. Ct. 546, 555, 98 L. Ed. 2d 568 (1988), as well as this Court's application of that decision, Holly suggests on appeal that "submission of this aggravating circumstance does not narrow the class of death-eligible defendants in a rational manner, thus it violates the Eighth Amendment."
The United States Supreme Court has held that as long as the class of defendants eligible for the death penalty is narrowed during the guilt or sentencing phase of the trial, "the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm." Lowenfield, 484 U.S. 231 at 246, 108 S.Ct. at 555. In Ladner v. State, 584 So. 2d 743 (Miss. 1991), this Court, again rejecting the contention that aggravating factors could not be "stacked," reiterated Lowenfield, stating:
The United States Supreme Court held that when constitutionally required narrowing of the class of persons eligible for the death penalty is accomplished by the legislative definition of capital offenses in the guilt phase (as is done in Louisiana and Mississippi), the jury's further narrowing of the sentencing phase is not constitutionally *40 required. [Lowenfield, 484 U.S.] at 241-46, 108 S.Ct. at 552-55, 98 L.Ed.2d at 579-83.
Ladner, 584 So.2d at 763. Since this issue has been resolved by this Court, we find no merit to Holly's argument.
IX. WHETHER THE EVIDENCE IN THIS CASE IS SUFFICIENT TO PROVE THAT WILLIAM HOLLY IS GUILTY OF CAPITAL MURDER.
There must be "evidence legally sufficient to support a conviction of both the murder and the underlying felony had either been charged alone." Fisher v. State, 481 So. 2d 203, 212 (Miss. 1985). Upon reviewing the legal sufficiency of the evidence, all of the evidence consistent with the defendant's guilt is accepted as true together with any reasonable inferences that may be drawn from the evidence. Heidel v. State, 587 So. 2d 835, 838 (Miss. 1991); Davis v. State, 530 So. 2d 694, 703 (Miss. 1988). This Court may reverse only where the evidence regarding the elements of the crime is such that reasonable and fair minded jurors could only find the accused not guilty. Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987).
If there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.
McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987). The jury must be left to resolve matters regarding the weight and credibility of the evidence. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).
The uncorroborated testimony of an accomplice is sufficient to sustain a conviction. Foster, 639 So.2d at 1284; Culberson v. State, 379 So. 2d 499, 503 (Miss. 1979); Rich v. State, 322 So. 2d 468, 469 (Miss. 1975). However, this general rule is inapplicable where the accomplice testimony is unreasonable, self-contradictory or substantially impeached. Flanagan v. State, 605 So. 2d 753, 758 (Miss. 1992). Holly contends that the evidence was insufficient to support a conviction for the underlying offense of armed robbery because the only evidence of robbery was provided by accomplice testimony which was uncorroborated and substantially impeached. He points particularly to the fact that Kendall testified on direct examination that the money orders were taken from Norwood's person, but changed his story on cross-examination to admit that the money orders were taken from the taxi. However, we find that the evidence was sufficient to show the money was taken from Norwood.
Regardless of this discrepancy in Kendall's testimony, the elements of robbery only required that the money orders were taken from Norwood's presence. The jury was made aware of this fact through the following two instructions:
INSTRUCTION NO. S-1
For you to find that the defendant, WILLIAM JOSEPH HOLLY, was engaged in the crime of armed robbery, the State must prove from the evidence beyond a reasonable doubt that:
(1) WILLIAM JOSEPH HOLLY on or about the 12th day of July, 1992, in Grenada County, Mississippi, did willfully, unlawfully and feloniously take money and money orders the personal property of Neely Cab Company and/or David James Norwood, Jr., and,
(2) said taking was in the presence of, from the person of, and against the will of said David James Norwood, Jr., and was accomplished by violence to his person with a deadly weapon, and,
(3) at the time, William Joseph Holly, had the intent to permanently deprive David James Norwood, Jr., of the property, then same would constitute the crime of armed robbery.
INSTRUCTION NO. S-9
A thing is in the "presence" of a person, in respect to robbery, which is so within his reach, inspections, observation or control, that he could, if not overcome with violence or prevented by fear, retain his possession of it.
The evidence was at least sufficient to establish that the money and money orders were taken from Norwood's presence. This *41 fact was never contradicted during the course of trial. Holly even admitted at trial that the money orders were taken from the cab. It was stipulated that the money orders were found in Holly's possession upon his arrest in Decatur, Illinois. Even if Holly was not the individual who removed the money orders from the dash or wallet, the evidence was clearly sufficient to establish Holly as a principal. Finally, the jury was instructed to weigh the accomplice testimony with "great care and caution and suspicion." Accordingly, this Court finds the evidence sufficient to convict Holly of capital murder during the commission of robbery.
X. WHETHER THE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE DECEASED VIOLATED RULE 403 OF THE MISSISSIPPI RULES OF EVIDENCE AND THE STATE AND FEDERAL CONSTITUTIONS.
Holly asserts that the circuit court erred in allowing into evidence three 4" x 6" color photographs taken of Norwood. They were introduced during the testimony of Deputy Coroner Eddie Robinson, who indicated that the photographs accurately depicted the large gunshot wounds Norwood sustained to his back and temple. Holly contends that the State's Exhibits Nos. 14, 17 and 18 were highly prejudicial and had no probative value, thus violating M.R.E. 403, art. III, § 28 of the Mississippi Constitution and the Eighth Amendment to the United States Constitution.
In Westbrook v. State, 658 So. 2d 847, 849 (Miss. 1995), this Court stated that photographs have evidentiary value where they aid in describing the circumstances of the killing and the corpus delicti, Williams v. State, 354 So. 2d 266 (Miss. 1978); describe the location of the body and cause of death, Ashley v. State, 423 So. 2d 1311 (Miss. 1982); or supplement or clarify witness testimony, Hughes v. State, 401 So. 2d 1100 (Miss. 1981).
The admissibility of photographs rests within the sound discretion of the trial court. Griffin v. State, 557 So. 2d 542, 549 (Miss. 1990); Mackbee v. State, 575 So. 2d 16, 31 (Miss. 1990); Boyd v. State, 523 So. 2d 1037, 1039 (Miss. 1988); Smith v. State, 419 So. 2d 563, 567 (Miss. 1982), cert. denied 460 U.S. 1047, 103 S. Ct. 1449, 75 L. Ed. 2d 803 (1983). Furthermore, the decision of the trial judge will be upheld unless there has been an abuse of discretion. Reynolds, 658 So.2d at 859; Herring v. State, 374 So. 2d 784, 789 (Miss. 1979).
The "discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value." Hart v. State, 637 So. 2d 1329, 1335 (Miss. 1994) (quoting Williams v. State, 544 So. 2d 782, 785 (Miss. 1987)). As was noted in Taylor v. State, 672 So. 2d 1246 (Miss. 1995), this Court has held photographs "to be so gruesome and inflammatory as to be prejudicial in only one circumstance, a close-up photograph of a partly decomposed, maggot-infested skull." Taylor, 672 So.2d at 1270-71 (citing McNeal v. State, 551 So. 2d 151 (Miss. 1989)).
The pictures at issue, although certainly not pleasant to look at, are not comparable to those described in McNeal, the case upon which Holly relies. Further they serve to clarify and supplement the coroner's testimony and to describe the cause of Norwood's death. Accordingly, the trial judge did not abuse his discretion in admitting the photographs.
XI. WHETHER THE DEATH SENTENCE IMPOSED ON WILLIAM HOLLY IS INVALID UNDER THE STATE AND FEDERAL CONSTITUTIONS AND MUST BE VACATED SINCE MISSISSIPPI LAW FAILS TO AUTHORIZE IMPOSITION OF THE DEATH PENALTY FOR CRIMES COMMITTED BY JUVENILES.
XII. WHETHER THE DEATH PENALTY FOR A JUVENILE WITHOUT ANY PARTICULARIZED PRETRIAL FINDINGS BEING MADE AS TO HIS MATURITY AND MORAL RESPONSIBILITY, VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 3, § 28 OF THE MISSISSIPPI CONSTITUTION OF 1890.
Miss. Code Ann. § 43-21-151(1) grants the youth court jurisdiction over all *42 proceedings concerning a delinquent child except where the offense is punishable by life imprisonment or death. Juveniles do not fall within the jurisdiction of the youth court if they commit offenses punishable by death or life imprisonment. Johnson v. State, 512 So. 2d 1246, 1250 (Miss. 1987); Winters v. State, 473 So. 2d 452 (Miss. 1985); Carter v. State, 334 So. 2d 376 (Miss. 1976).
Holly complains that neither the capital murder statute, Miss. Code Ann. § 99-19-101, nor the juvenile transfer statute, Miss. Code Ann. § 43-21-151(1) set an age below which a person may not be executed, constituting a violation of the Eighth Amendment. Holly argues he may not be executed since he was seventeen at the time he committed the offense. Although Holly failed to raise this argument in the court below, we will relax the contemporaneous objection rule where required by the interests of justice. Foster, 639 So.2d at 1295; Williams v. State, 445 So. 2d 798 (Miss. 1984).
Mississippi law clearly prohibits the execution of a juvenile who committed an offense while under the age of thirteen since he may not even be charged for a misdemeanor or felony. Miss. Code Ann. § 43-21-151(3). Furthermore, the Eighth and Fourteenth Amendments prohibit the imposition of the death penalty on a person who committed an offense while under the age of sixteen. Thompson v. Oklahoma, 487 U.S. 815, 838, 108 S. Ct. 2687, 2700, 101 L. Ed. 2d 702 (1988). The United States Supreme Court, however, has refused to find a constitutional impediment to imposition of the death penalty on juvenile offenders who are over the age of sixteen or seventeen years or older. Wills v. Texas, ___ U.S. ___, 114 S. Ct. 1867, 128 L. Ed. 2d 488 (1994); Callins v. Collins, ___ U.S. ___, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994). Although Mississippi fails to set a specific minimum age at which one may be eligible for the death penalty, this Court has stated that "[t]here is no constitutional impediment to the imposition of the death sentence on a seventeen year old under the Mississippi statutes even though the age at which one may receive a death sentence for the crime of capital murder is implied rather than explicitly stated." Foster, 639 So.2d at 1297. "[S]uch specificity is not necessary to avoid constitutional problems if it is clear that no national consensus forbids the imposition of capital punishment for crimes committed at such an age." Wilkins v. Missouri, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989). Consequently, there is no prohibition in sentencing this seventeen-year-old defendant to death merely because our statutes do not explicitly state that a sixteen- or seventeen-year-old defendant may be punished with execution for a capital crime. See Foster, 639 So.2d at 1297-98, cert. denied, ___ U.S. ___, 115 S. Ct. 1365, 131 L. Ed. 2d 221 (1995) (Mississippi's failure to set minimum age for imposition of death penalty does not make it unconstitutional to execute defendant who committed capital murder when seventeen years old).
Holly further asserts that pursuant to Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), since no particularized findings as to his maturity and moral responsibility were made, his conviction must be set aside. Stanford imposes no such responsibility upon states. Rather, in dicta, the Supreme Court merely noted that "the determinations required by juvenile transfer statutes to certify a juvenile for trial as an adult ensure individualized consideration of the maturity and moral responsibility of 16- and 17-year-old offenders before they are even held to stand trial as adults." Stanford, 492 U.S. at 375, 109 S.Ct. at 2978, 106 L.Ed.2d at 322. There being no constitutional impediments to the imposition of the death penalty on a juvenile offender who was seventeen years old at the time of the crimes for which he was convicted, we find no merit to Holly's arguments.
XIII. WHETHER THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THE CRIME OF KIDNAPPING REQUIRES THE ELEMENT OF ASPORTATION.
The circuit court granted Instruction S-2 on the charge of kidnapping, charging the jury that if it found that Holly "did willfully, unlawfully, and feloniously, forcibly seize and confine David James Norwood, Jr. *43 with the intent to cause the said, David James Norwood, Jr. to be deprived of his liberty and held against his will, then you shall find the defendant guilty of kidnapping in Count II." Relying on Aikerson v. State, 274 So. 2d 124, 128 (Miss. 1973), for the proposition that the victim must have been moved from one place to another, Holly contends that the instruction erroneously omitted the element of asportation.
Miss. Code Ann. § 97-3-53, in relevant part, defines kidnapping as when "[a]ny person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause that person to be secretly confined or imprisoned against his or her will... ." The elements of the crime were clarified as follows in Hughes v. State, 401 So. 2d 1100 (Miss. 1981):
Every person who shall, without lawful authority
(1) forcibly seize and confine any other,
(2) or shall inveigle or kidnap any other
(3) with intent
(a) to cause such person to be secretly confined or imprisoned in the state against his will,
(b) or to cause such other person to be sent out of this state against his will,
(c) or to cause such other person
(1) to be deprived of his liberty,
(2) or in any way held to service against his will...
Under the statute the state must prove that a person, without lawful authority, either (1) forcibly seized and confined another person, or (2) inveigled or kidnapped another person, intending to subject such person to either (a), (b), or (c) above. Hughes, 401 So.2d at 1105. In Carr v. State, 655 So. 2d 824 (Miss. 1995), we rejected the Aikerson argument raised by an appellant who, like Holly, assigned as error the failure to include the element of asportation in a kidnapping instruction. We specifically stated that § 97-3-53 "does not require any allegation of transportation of the victim," and deemed the jury to have been properly instructed on the underlying felony of kidnapping. Carr, 655 at 849. Further, we reiterated that "`asportation was not a necessary ingredient of the indictment, so long as the indictment charges the victim was imprisoned against his will.'" Id. (quoting Brewer v. State, 459 So. 2d 293, 296 (Miss. 1984)). Count II of the indictment, which charged Holly and his friends with kidnapping, contains the requisite language, stating that the three caused Norwood to be "confined and imprisoned and deprived of his liberty against his will...." Accordingly, we do not hold the circuit court in error for granting Instruction S-2.
XIV. WHETHER HOLLY'S STATE AND FEDERAL CONSTITUTIONAL RIGHT NOT TO BE TWICE PUT IN JEOPARDY FOR THE SAME OFFENSE WAS VIOLATED WHEN THE JURY WAS ALLOWED TO CONVICT HIM OF BOTH MURDER DURING THE COMMISSION OF A ROBBERY AND THE LESSER INCLUDED OFFENSE OF GRAND LARCENY.
Holly was found guilty of capital murder under Count I[1] of the indictment which charged him with the murder of David Norwood during the course of armed robbery. He was also found guilty of grand larceny pursuant to Count III[2] of the indictment *44 for the taking and carrying away of Neely Cab Co.'s automobile. Holly argues that his convictions for grand larceny and capital murder constituted a double jeopardy violation because the elements of grand larceny in our statutory scheme are completely enveloped by the crime of robbery which was used to elevate a charge of simple murder into capital murder. In other words, Holly complains that once a conviction for this category of capital murder is obtained, no other evidence must be produced to convict him of the crime of grand larceny.
There was no double jeopardy concern in simultaneously placing Holly on trial for grand larceny and capital murder committed in the course of a robbery. Stewart v. State, 662 So. 2d 552, 560 (Miss. 1995); Meeks v. State, 604 So. 2d 748, 751 (Miss. 1992). Whether Holly may be convicted for both capital murder committed in the course of a robbery and grand larceny poses a more difficult question as the double jeopardy clause prohibits multiple punishments for the same offense. Lanier v. State, 635 So. 2d 813, 818 (Miss. 1994) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969)); Barnette v. State, 478 So. 2d 800, 802 (Miss. 1985).
Although a state may freely define crimes and assign punishments, it is not allowed to punish a defendant for a crime containing elements which are completely enveloped by an offense for which a defendant was previously convicted. Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
If an individual is charged with two offenses, and all the elements of one are included within and are a part of a second greater offense, Blockburger intervenes. It charges that we compare statutory offenses, as indicated, and see whether each requires proof of a fact the other does not.
Stewart, 662 So.2d at 560 (citing Meeks v. State, 604 So. 2d 748, 751 (Miss. 1992)). Even though there may be a substantial overlap in the proof supporting the convictions of the different crimes, the Blockburger test is met where each offense requires proof of an element not necessary to the other. Brock v. State, 530 So. 2d 146, 150 (Miss. 1988) (citing Iannelli v. United States, 420 U.S. 770, 785, 95 S. Ct. 1284, 1293, 43 L. Ed. 2d 616 (1975)). The focus remains on the statutory elements of the offenses charged instead of the facts presented at trial. Brock, 530 So.2d at 150 (citing Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 2225-2226, 53 L. Ed. 2d 187 (1977)).
Holly's capital murder conviction fell under Miss. Code Ann. § 97-3-19(2), which provides as follows:
(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder ...
(e) When done with or without design to effect death, by any person engaged in the commission of the crime of ... robbery... .
Miss. Code Ann. § 97-3-79 provides the definition of those people guilty of the crime of robbery:
Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon... .
Holly's conviction for grand larceny fell under Miss. Code Ann. § 97-17-41[3] which *45 provided the following definition of the crime when he was charged:
Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Two Hundred Fifty Dollars ($250.00) or more, shall be guilty of grand larceny .. .
In Meeks, we precluded the lower court from convicting the defendant for kidnapping and capital murder under the same category of capital murder as presented in the case sub judice because the kidnapping offense was used to elevate a plain murder charge into a capital murder charge. 604 So.2d at 754; see also Fuselier v. State, 654 So. 2d 519, 522 (1995) (conviction and sentence for burglary may not stand where burglary was used as basis for capital murder charge). In Jones v. State, 567 So. 2d 1189, 1192 (Miss. 1990), this Court found the evidence insufficient to convict the defendant of robbery as there was no proof of the element that the store clerk in the back office was placed in fear. However, in finding the evidence sufficient to uphold a charge of grand larceny, we noted that the elements of larceny are contained within the crime of robbery. Id.
Holly contends that he has already been punished for the grand larceny charge because the robbery charge, which was used to elevate this into a case of capital murder, encompassed the elements of grand larceny. The State maintains, however, that grand larceny is not enveloped by the crime of robbery since it requires the additional element that the property taken be worth more than two hundred fifty dollars ($250.00).[4] The State also contends that the capital murder charge was not related to the grand larceny charge in this case because the underlying robbery used to elevate this into a capital murder case involved Holly's act of stealing David Norwood's money, whereas the grand larceny charge concerned the theft of the taxi cab from Neely Cab Co.
We find that the monetary amount which distinguishes grand larceny from petit larceny and robbery is irrelevant for purposes of the double jeopardy analysis. The fact remains that once the State proved the elements of robbery, it was not required to offer any additional proof to establish the charge of grand larceny. The taking of property was the element relevant to establish each charge regardless of its value. Nor was ownership of the property relevant to the double jeopardy analysis in the case sub judice since the distinction between the exact property used to sustain the different charges was blurred by jury instruction S-1. Instruction S-1, which covered the robbery charge, referred to the personal property of both Neely Cab Co. and David Norwood.[5] Because the State failed to present a clear distinction as to the ownership of the stolen property, the State is not permitted to utilize the elements of grand larceny first, to elevate this murder into a case of capital murder, and once again, to convict and punish Holly for the crime of grand larceny. The conviction for grand larceny in this case could stand only if Holly had been convicted of the single crime of plain murder. For this reason, this Court vacates Holly's sentence and conviction for the lesser included offense of grand larceny. See United States v. Buckley, 586 F.2d 498, 505 (5th Cir.1978), cert. denied, 440 U.S. 982, 99 S. Ct. 1792, 60 L. Ed. 2d 242 ("where a defendant is improperly convicted for a lesser included offense, the proper remedy is to vacate both the conviction and sentence on the included offense, leaving the conviction and sentence on the greater offense intact").
XV. WHETHER THE DEATH SENTENCE IS DISPROPORTIONATE IN THIS CASE CONSIDERING THE UNIQUE CHARACTERISTICS OF WILLIAM HOLLY.
Pursuant to Miss. Code Ann. § 99-19-105(3), in addition to reviewing the merits of those issues raised by the defendant, we are required to determine:
*46 (a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
(b) Whether the evidence supports the jury's or judge's findings of a statutory aggravating circumstances as enumerated in Section 99-19-101; and
(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Holly, reiterating arguments made in Issues XI and XII, supra, that "the taking of a child's life transgresses the modern standard of dignity," asserts that the death sentence is disproportionate in his case. Since our decision in Jackson v. State, 337 So. 2d 1242 (Miss. 1976), however, we have upheld the imposition of the death penalty in the cases listed in the Appendix. Three of those cases involved seventeen- and eighteen-year-olds who committed crimes similar to those for which Holly was convicted. In Foster v. State, 639 So. 2d 1263 (Miss. 1994), we upheld the death penalty in the case of Ronald Chris Foster, who at the age of seventeen, robbed a convenience store and fatally shot the store clerk in the head. Further, in the companion cases of Leatherwood v. State, 435 So. 2d 645 (Miss. 1983) and Tokman v. State, 435 So. 2d 664 (Miss. 1983), we found that the death penalty was not disproportionate for a seventeen-year-old and an eighteen-year-old, who together with a third young man, robbed and beat to death a taxi cab driver.
Holly makes several general allegations that the death penalty is not appropriate where the defendant comes from a disadvantaged background or has a low I.Q., arguing that these factors should be considered as mitigating circumstances. The jury was instructed in Sentencing Instruction C-1 to consider a panoply of mitigating circumstances, which included:
(1) The age of Defendant at the time of the crime.
(2) As a child Defendant exhibited emotional and scholastic difficulties.
(3) Single parent family.
(4) Defendant lacked father figure.
(5) Defendant endured lonely, isolated, depressed childhood.
(6) Poor school functioning.
(7) Exhibited low self esteem as child.
(8) Lacked positive interactions as child.
(9) Lacked significant positive parental figure.
(10) Lacked guidance and nurturing as a youth.
(11) Lacked social reinforcement based on positive behavior.
(12) Family lacked financial stability.
(13) Economic assistance from father nonexistent.
(14) Exposed to physical abuse of mother by her partner.
(15) Remorse on behalf of Defendant.
(16) Acceptance of responsibility by Defendant.
(17) Any other matter, any other aspect of the defendant's character or record, and any other circumstance of the offense brought to you during the trial of this cause which you, the jury, deem to be mitigating on behalf of the defendant.
The jury found that these mitigating circumstances were insufficient to outweigh the aggravating factors when sentencing him to death. Given that the jury was afforded the opportunity to consider fully Holly's disadvantaged background and that the sentence is not disproportionate to that meted out to juveniles of his age who have committed similar crimes, we cannot say that the death penalty is disproportionate in this case.
XVI. WHETHER THE AGGREGATE ERROR IN THIS CASE REQUIRES REVERSAL OF THE CONVICTION AND DEATH SENTENCE.
Holly argues that he is entitled to a reversal of his conviction and sentence due to the cumulative errors which, he claims, denied him a fair trial. See, e.g. Hansen v. State, 592 So. 2d 114, 153 (Miss. 1991); Griffin v. State, 557 So. 2d 542 (Miss. 1990); Stringer v. State, 500 So. 2d 928, 946 (Miss. 1986). Since the defense has failed to suggest any meaningful error in the proceedings below with *47 respect to the charges of capital murder and kidnapping, this assignment of error is without merit.
CONCLUSIONS
The assignments of error raised in this appeal with regard to the guilt and sentencing phases of Holly's capital murder and kidnapping convictions are without merit. We therefore affirm the death penalty and kidnapping convictions in this case. However, in light of Holly's conviction of capital murder with armed robbery as an underlying offense, conviction on the grand larceny charge constitutes double jeopardy under the particular circumstances of this case. Therefore, we reverse and vacate the grand larceny conviction.
COUNTS I AND II: CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105(7)(1972) AND M.R.A.P. 41(a).
COUNT III: CONVICTION OF GRAND LARCENY REVERSED; VACATED.
DAN M. LEE, C.J., PRATHER and SULLIVAN, P.JJ., and PITTMAN, BANKS, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur.
APPENDIX
DEATH CASES AFFIRMED BY THIS COURT
Davis v. State, 660 So. 2d 1228 (Miss. 1995).
Carr v. State, 655 So. 2d 824 (Miss. 1995)
Mack v. State, 650 So. 2d 1289 (Miss. 1994)
Chase v. State, 645 So. 2d 829 (Miss. 1994)
Foster v. State, 639 So. 2d 1263 (Miss. 1994)
Conner v. State, 632 So. 2d 1239 (Miss. 1993).
Hansen v. State, 592 So. 2d 114 (Miss. 1991).
[*]Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990) reversing, in part, and remanding, Shell v. State, 595 So. 2d 1323 (Miss. 1992) remanding for new sentencing hearing.
Davis v. State, 551 So. 2d 165 (Miss. 1989).
Minnick v. State, 551 So. 2d 77 (Miss. 1989).
[*]Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075, 110 S. Ct. 1800, 108 L. Ed. 2d 931 (1990) vacating and remanding Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) remanding for new sentencing hearing.
[*]Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992) remanding for new sentencing hearing.
Woodward v. State, 533 So. 2d 418 (Miss. 1988).
Nixon v. State, 533 So. 2d 1078 (Miss. 1987).
Cole v. State, 525 So. 2d 365 (Miss. 1987).
Lockett v. State, 517 So. 2d 1346 (Miss. 1987).
Lockett v. State, 517 So. 2d 1317 (Miss. 1987).
Faraga v. State, 514 So. 2d 295 (Miss. 1987).
[*]Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925 (1988) vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for new sentencing hearing.
Wiley v. State, 484 So. 2d 339 (Miss. 1986).
Johnson v. State, 477 So. 2d 196 (Miss. 1985).
Gray v. State, 472 So. 2d 409 (Miss. 1985).
Cabello v. State, 471 So. 2d 332 (Miss. 1985).
Jordan v. State, 464 So. 2d 475 (Miss. 1985).
Wilcher v. State, 455 So. 2d 727 (Miss. 1984).
Billiot v. State, 454 So. 2d 445 (Miss. 1984).
Stringer v. State, 454 So. 2d 468 (Miss. 1984).
Dufour v. State, 453 So. 2d 337 (Miss. 1984).
Neal v. State, 451 So. 2d 743 (Miss. 1984).
Booker v. State, 449 So. 2d 209 (Miss. 1984).
Wilcher v. State, 448 So. 2d 927 (Miss. 1984).
Caldwell v. State, 443 So. 2d 806 (Miss. 1983).
*48 Irving v. State, 441 So. 2d 846 (Miss. 1983).
Tokman v. State, 435 So. 2d 664 (Miss. 1983).
Leatherwood v. State, 435 So. 2d 645 (Miss. 1983).
Hill v. State, 432 So. 2d 427 (Miss. 1983).
Pruett v. State, 431 So. 2d 1101 (Miss. 1983).
Gilliard v. State, 428 So. 2d 576 (Miss. 1983).
Evans v. State, 422 So. 2d 737 (Miss. 1982).
King v. State, 421 So. 2d 1009 (Miss. 1982).
Wheat v. State, 420 So. 2d 229 (Miss. 1982).
Smith v. State, 419 So. 2d 563 (Miss. 1982).
Johnson v. State, 416 So. 2d 383 (Miss. 1982).
Edwards v. State, 413 So. 2d 1007 (Miss. 1982).
Bullock v. State, 391 So. 2d 601 (Miss. 1980).
Reddix v. State, 381 So. 2d 999 (Miss. 1980).
Jones v. State, 381 So. 2d 983 (Miss. 1980).
Culberson v. State, 379 So. 2d 499 (Miss. 1979).
Gray v. State, 375 So. 2d 994 (Miss. 1979).
Jordan v. State, 365 So. 2d 1198 (Miss. 1978).
Voyles v. State, 362 So. 2d 1236 (Miss. 1978).
Irving v. State, 361 So. 2d 1360 (Miss. 1978).
Washington v. State, 361 So. 2d 61 (Miss. 1978).
Bell v. State, 360 So. 2d 1206 (Miss. 1978).
DEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE
Giles v. State, 650 So. 2d 846 (Miss. 1995)
Duplantis v. State, 644 So. 2d 1235 (Miss. 1994)
Harrison v. State, 635 So. 2d 894 (Miss. 1994)
Butler v. State, 608 So. 2d 314 (Miss. 1992).
Jenkins v. State, 607 So. 2d 1171 (Miss. 1992).
Abram v. State, 606 So. 2d 1015 (Miss. 1992).
Balfour v. State, 598 So. 2d 731 (Miss. 1992).
Griffin v. State, 557 So. 2d 542 (Miss. 1990).
Bevill v. State, 556 So. 2d 699 (Miss. 1990).
West v. State, 553 So. 2d 8 (Miss. 1989).
Leatherwood v. State, 548 So. 2d 389 (Miss. 1989).
Mease v. State, 539 So. 2d 1324 (Miss. 1989).
Houston v. State, 531 So. 2d 598 (Miss. 1988).
West v. State, 519 So. 2d 418 (Miss. 1988).
Davis v. State, 512 So. 2d 1291 (Miss. 1987).
Williamson v. State, 512 So. 2d 868 (Miss. 1987).
Foster v. State, 508 So. 2d 1111 (Miss. 1987).
Smith v. State, 499 So. 2d 750 (Miss. 1986).
West v. State, 485 So. 2d 681 (Miss. 1985).
Fisher v. State, 481 So. 2d 203 (Miss. 1985).
Johnson v. State, 476 So. 2d 1195 (Miss. 1985).
Fuselier v. State, 468 So. 2d 45 (Miss. 1985).
West v. State, 463 So. 2d 1048 (Miss. 1985).
Jones v. State, 461 So. 2d 686 (Miss. 1984).
Moffett v. State, 456 So. 2d 714 (Miss. 1984).
Lanier v. State, 450 So. 2d 69 (Miss. 1984).
Laney v. State, 421 So. 2d 1216 (Miss. 1982).
DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT
Reddix v. State, 547 So. 2d 792 (Miss. 1989).
Wheeler v. State, 536 So. 2d 1341 (Miss. 1988).
White v. State, 532 So. 2d 1207 (Miss. 1988).
Bullock v. State, 525 So. 2d 764 (Miss. 1987).
Edwards v. State, 441 So. 2d 84 (Miss. 1983).
Dycus v. State, 440 So. 2d 246 (Miss. 1983).
Coleman v. State, 378 So. 2d 640 (Miss. 1979).
DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY
[*]Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990) reversing, in part, and remanding, Shell v. State 595 So. 2d 1323 (Miss. 1992) remanding for new sentencing hearing.
*49 [*]Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075, 110 S. Ct. 1800, 108 L. Ed. 2d 931 (1990) vacating and remanding, Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) remanding for new sentencing hearing.
[*]Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992) remanding for new sentencing hearing.
[*]Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230, 108 S. Ct. 2891, 101 L. Ed. 2d 925 (1988) vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for new sentencing hearing.
Russell v. State, 607 So. 2d 1107 (Miss. 1992).
Holland v. State, 587 So. 2d 848 (Miss. 1991).
Willie v. State, 585 So. 2d 660 (Miss. 1991).
Ladner v. State, 584 So. 2d 743 (Miss. 1991).
Mackbee v. State, 575 So. 2d 16 (Miss. 1990).
Berry v. State, 575 So. 2d 1 (Miss. 1990).
Turner v. State, 573 So. 2d 657 (Miss. 1990).
State v. Tokman, 564 So. 2d 1339 (Miss. 1990).
Johnson v. State, 547 So. 2d 59 (Miss. 1989).
Williams v. State, 544 So. 2d 782 (Miss. 1989).
Lanier v. State, 533 So. 2d 473 (Miss. 1988).
Stringer v. State, 500 So. 2d 928 (Miss. 1986).
Pinkton v. State, 481 So. 2d 306 (Miss. 1985).
Mhoon v. State, 464 So. 2d 77 (Miss. 1985).
Cannaday v. State, 455 So. 2d 713 (Miss. 1984).
Wiley v. State, 449 So. 2d 756 (Miss. 1984).
Williams v. State, 445 So. 2d 798 (Miss. 1984).
NOTES
[1] Count I of the indictment read as follows:
WILLIAM JOSEPH HOLLY, TOMMY G. BENEFIELD and WAYLAN KENDALL late of the county aforesaid, on or about the 12th day of July, 1992, in the count aforesaid and within the jurisdiction of this Court, while acting in concert with, or aiding, abetting, assisting or encouraging each other, did wilfully, unlawfully, feloniously, and with deliberate design, kill David Norwood, Jr., a human being, by then and there shooting him with a shotgun, and while engaged in the commission of the felony crime of ARMED ROBBERY, in violation of Miss. Code Ann. § 97-3-79 and § 97-3-19(2)(e), (Supp. 1972, as amended) and constituting a series of related acts or transaction, or a common scheme or plan.
[2] Count III of the indictment read as follows:
WILLIAM JOSEPH HOLLY, TOMMY G. BENEFIELD and WAYLAN KENDALL late of the county aforesaid, on or about the 12th day of July, 1992, in the county aforesaid and within the jurisdiction of this Court, while acting in concert with, or aiding, abetting, assisting, or encouraging each other, did wilfully, unlawfully and feloniously with the felonious intent to permanently deprive the owner thereof, take, steal and carry away the personal property of Edward Neely d/b/a Neely's Cab, to wit:
One 1985 White Ford LTD Automobile a further and more complete description being to the Grand Jury unknown, and of the total and aggregate value of more than One Hundred ($100.00) dollars in lawful United States money, against the peace and dignity of the State of Mississippi.
[3] The statute was amended effective July 1, 1992 to increase the value of property taken to two hundred fifty dollars ($250.00). See Miss. Code Ann. § 97-17-41 (1994). The indictment erroneously charged Holly with the theft of property greater than one hundred dollars ($100.00). However, jury instruction S-3 properly required the jury to find the property greater than two hundred fifty dollars ($250.00) in value to support a conviction for grand larceny.
[4] The State failed to reflect the change in Miss. Code Ann. § 97-17-41 in its brief. However, the exact monetary value does not alter the effect of the State's argument or the resolution of this issue.
[5] The words "money and money orders" were handwritten above "personal property of Neely Cab Company and/or David James Norwood" in jury instruction S-1.
[*] Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2397681/ | 481 F. Supp. 1256 (1980)
ALLIS-CHALMERS CORPORATION, Hydro-Turbine Division, Plaintiff,
v.
Commissioner Joseph F. FRIEDKIN et al., Defendants.
Civ. A. No. 79-1153.
United States District Court, M. D. Pennsylvania.
January 3, 1980.
*1257 Thomas A. Schmutz, Washington, D. C., William J. Flannery, Morgan, Lewis & Bockius, Harrisburg, Pa. (Morgan, Lewis & Bockius, Washington, D. C., of counsel), William P. Schuster, Milwaukee, Wis., for Hydro-Turbine Division, Allis Chalmers Corp.
Paul H. Rhoads, R. Stephen Shibla, Rhoads, Sinon & Hendershot, Harrisburg, Pa., Morgan Hunter, McGinnis, Lochridge & Kilgore, Austin, Tex., for South Texas Electric Cooperative, Inc. and Medina Electric Cooperative, Inc., intervenors.
Edward K. Allison, San Francisco, Cal., Lewis S. Kunkel, Jr., Pepper, Hamilton & Scheetz, Harrisburg, Pa., for Hitachi America, Ltd.
Jerome H. Gerber, Handler & Gerber, Harrisburg, Pa., for International Ass'n of Machinists & Aerospace Workers.
Paul J. Killian, Asst. U. S. Atty., Harrisburg, Pa., Catherine A. Ribnick, Civil Division, Federal Programs Br., U. S. Dept. of Justice, Washington, D. C., J. Michael Cavanagh, Graham & James, Washington, D. C., for the Government.
MEMORANDUM
HERMAN, District Judge.
I. INTRODUCTION
A. Buy-American Act
In 1933 the United States Congress enacted the Buy American Act to protect American interests in contracts for the procurement of government supplies and construction. Buy American Act of March 3, 1933, P.L. 428, Tit. III, as amended, 41 U.S.C. §§ 10a-10d. The concerns expressed by the Congressmen who supported the Act through its passage were uniformly related to the protection of both American industry and American labor.[1] Congress feared, especially during the Depression, that foreign businesses could use their cheap sources of labor to badly undercut the bids of American concerns.[2] The fear was that the higher standard of living for American laborers resulting from higher wages would backfire and lead to a loss of jobs if American businesses lost contracts and were forced to shut down.
*1258 The thrust of the Act is to require the use of American-made articles, materials, and supplies in government construction unless such use is "inconsistent with the public interest" or the department head determines "the cost to be unreasonable". 41 U.S.C. § 10a. This broad-reaching congressional mandate left a great deal to be determined by the contracting government agency whose duty it was to apply the Act. To aid in establishing a more precise application of the policy underlying the Act, President Eisenhower implemented an order designed to explain ambiguous terms. Exec. Order No. 10582, Dec. 17, 1954, 19 F.R. 8723, as amended by Exec. Order No. 11051, Sept. 27, 1962, 27 F.R. 9683 cited following 41 U.S.C.A. § 10d. The Act is further clarified and defined by the Federal Procurement Regulations (hereafter referred to as "FPR"), 41 C.F.R. §§ 1-6.1 et seq. and §§ 1-18.600 et seq.
B. The Statutory and Regulatory Framework
Sections 10a and 10b(a) provide the principal language of the Act. In 1949, however, Congress attempted to clarify the intent with which it passed both of the above sections. Act of October 29, 1949, C. 787, Tit. VI, § 633, 41 U.S.C. § 10d. This clarification of the "original intent" of Congress in 1933 states that sections 10a and 10b(a)
requir[e] the purchase, for public use within the United States of articles, materials, or supplies manufactured in the United States in sufficient and reasonably commercial quantities and of a satisfactory quality, unless the head of the department or independent establishment concerned shall determine their purchase to be inconsistent with the public interest or their cost to be unreasonable.
The Executive Order promulgated by President Eisenhower was designed to ensure uniform application of the general requirements of the Buy American Act. In re Fairbanks, Morse & Company, 41 Comp. Gen. 70 (1961). The Order effectively declared that the amount of an American bid was "unreasonable" if it was more than six percent greater than a foreign bid. The relevant portions of the amended Executive Order No. 10582 are as follows:
Section 1. As used in this order, (a) the term "materials" includes articles and supplies, (b) the term "executive agency" includes executive department, independent establishment, and other instrumentality of the executive branch of the Government, and (c) the term "bid or offered price of materials of foreign origin" means the bid or offered price of such materials delivered at the place specified in the invitation to bid including applicable duty and all costs incurred after arrival in the United States.
Sec. 2. (a) For the purposes of this order materials shall be considered to be of foreign origin if the cost of the foreign products used in such materials constitutes fifty per centum or more of the cost of all the products used in such materials.
(b) For the purposes of the said act of March 3, 1933 [sections 10a-10c of this title], and the other laws referred to in the first paragraph of the preamble of this order, the bid or offered price of materials of domestic origin shall be deemed to be unreasonable, or the purchase of such materials shall be deemed to be inconsistent with the public interest, if the bid or offered price thereof exceeds the sum of the bid or offered price of like materials of foreign origin and a differential computed as provided in subsection (c) of this section.
(c) The executive agency concerned shall in each instance determine the amount of the differential referred to in subsection (b) of this section on the basis of one of the following described formulas, subject to the terms thereof:
(1) The sum determined by computing six per centum of the bid or offered price of materials of foreign origin.
* * * * * *
The final set of guidelines for awarding government procurement contracts is found in the FPR. These regulations provide the most detailed requirements concerning the application of the Buy American Act to *1259 government contracts. The section primarily applicable to the matter under our consideration is section 1-6.104-4(a) and (b):
§ 1-6.104-4 Evaluation of bids and proposals.
(a) Unless otherwise determined by the head of the agency in accordance with the Buy American Act, where the procedures in this § 1-6.104-4 result in the acquisition of foreign end products, the acquisition of domestic source end products would be (1) unreasonable in cost or (2) inconsistent with the public interest (see § 1-6.103-3).
(b) Except as provided in paragraph (d) of this section, bids and proposals shall be evaluated as provided in this section so as to give preference to domestic bids. Each foreign bid shall be adjusted for purposes of evaluation by adding to the foreign bid (inclusive of duty) a factor of 6 percent of that bid, except that a 12 percent factor shall be used instead of the 6 percent factor if the firm submitting the low acceptable domestic bid is a small business concern or a labor surplus area concern (as defined in §§ 1-1.701 and 1-1.801, respectively), or both. However, if an award for more than $100,000 would be made to a domestic concern if the 12 percent factor is applied, but would not be made if the 6 percent factor is applied, the case shall be submitted to the head of the agency for decision as to whether the award to the small business concern or labor surplus area concern would involve unreasonable cost or inconsistency with the public interest (see § 1-6.103-3). If the foregoing procedure results in a tie between a foreign bid as evaluated and a domestic bid, award shall be made on the domestic bid. When more than one line item is offered in response to an invitation for bids or request for proposals, the appropriate factor shall be applied on an item-by-item basis, except that the factor may be applied to any group of items as to which the invitation for bids or request for proposals specifically provides that award is to be made on a particular group of items.
II. FACTUAL BACKGROUND
A. The Project
We need resolve no material differences in factual matters in the present controversy. All parties agree to the principal facts in evidence. We need only state the facts and apply the statutory and regulatory requirements to them.
The United States and Mexico entered a treaty on February 3, 1944 that authorized construction of two multi-purpose storage dams and hydro-electric power plants on the Rio Grande River. The Defendant United States Section of the International Boundary and Water Commission (hereafter referred to as "the Section") subsequently built the Falcon and Amistad Dams and constructed a hydro-electric power plant at the Falcon damsite. The matter presently before us concerns a contract for the construction of a hydro-electric plant at the Amistad damsite.
The congressional authorization for the construction of the Amistad power plant requires that it be self-liquidating. 22 U.S.C. §§ 277d-13 to 277d-16. Although the United States will build, operate and maintain the facility, the purchaser of the generated power must agree to reimburse the government for all construction costs, interest, and operating and maintenance expenses. 22 U.S.C. § 277d-14.
On August 9, 1977 the Bureau of Reclamation of the Department of the Interior entered into a contract with the South Texas Electric Cooperative, Inc. and Medina Electric Cooperative, Inc. (hereafter referred to together as "STEC/MEC"), for the sale and purchase of the United States' share of the electrical power generated from the Amistad plant. The terms of the contract provide that STEC/MEC will pay the construction and operational costs of the project to ensure that it is self-liquidating.
For construction of the power plant at Amistad, the Section entered into an agreement with the Army Corps of Engineers (hereafter referred to as "the Corps") on August 22, 1977. The Corps agreed to act *1260 as the Section's engineer-representative in supervising the development of the technical design, plans, and specifications for the plant.
The Corps' Southwest Division (hereafter referred to as "the Division") undertook the responsibilities of engineer-representative to recommend the award of manufacturing and construction contracts and to supervise the construction of the plant. The Division subsequently directed its Fort Worth District (hereafter referred to as "the District") to solicit bids for all procurements involved. This task required drafting all of the required bids, advertising the bid solicitations, receiving, opening, and evaluating the bids, and recommending the awards be made to specific bidders. The initial procurement, about which the entire project revolved, was for the massive hydro-turbines. The solicitation and evaluation of the bids for supplying this material are the subject of the present litigation.
B. The Bid Solicitation
In preparing the draft solicitation for bids for the Amistad turbines, the District used the format employed by the Seattle District of the Corps when that District awarded a contract for hydro-turbines in the Libby Dam project. The successful bidder in the Libby construction was the original Plaintiff in this action, the Allis-Chalmers Corporation (hereafter referred to as "Allis-Chalmers"). Adhering exactly to the Seattle format, the District used the documentary materials drafted by the Corps' North Pacific Division. The North Pacific Division was suited for such an advisory position because of its recent experience in the Northwest with hydro-electric projects. In assembling the numerous technical and non-technical contractual provisions, the North Pacific Division followed the Corps' standard guide specifications, including CE 1101.01 for Nontechnical Contract Provisions. CE 1101.01 contained a standard General Condition Three which was properly incorporated into the solicitation for bids. General Condition Three, relating to the application of the Buy American Act to the project, was required by CE 1101.01, has been used in the present form since 1970, and appeared in the Libby Dam contract awarded to Allis-Chalmers.
General Conditions 3.2 and 3.3 of the bid solicitations provide:
GC-3.2 End products are the items to be delivered to the Government, as specified in the contract, including supplies to be acquired by the Government for public use in connection with service contracts, but excluding installation and other services to be performed after delivery.
GC-3.3 When the services of erecting engineers are specified the bid amount in the Schedule for Services or Erecting Engineers will be subtracted from the bid amount before application of the Buy American Act.
The invitation for bids, IFB 79-3, ultimately published by the District consisted of a variety of technical and nontechnical specifications and other provisions prescribed by the Federal Procurement Regulations. The District followed the FPR rather than the Defense Acquisition Regulations normally used by the Corps because the contracting agency was the civilian Section.
The Corps traditionally procured turbines from a manufacturer for delivery to the jobsite where a general contractor would thereafter install them, when appropriate, into the power plant under construction. The North Pacific Division, however, broke from that tradition and called for bids on both the manufacture and the installation of the turbines from all companies. The two segments, manufacture and installation, continue to have separate, independent bid prices, but the same company bids on both even if it is not the general contractor. This procedure was adopted by the District in the Amistad project.
The District issued the bid invitations, IFB 79-3, on March 13, 1979. It received bids soon thereafter and opened them for evaluation on June 8, 1979.
*1261 C. Bid Evaluation and Award
In evaluating the submitted bids, the Contracting Officer of the Corps was expressly authorized by the bid solicitation to deduct the unit price cost of model turbine tests if the bidder had previously conducted such tests and submitted sufficient data to enable the Contracting Officer to judge the acceptability of the prior tests. The solicitation for bids also required the deduction from the bid price of any prompt payment discounts offered to the bidder. The solicitation further required the addition to any foreign bids of an amount that covered foreign testing.
In response to the solicitation for bids to supply the hydro-turbines, five companies submitted bids to the Section. Allis-Chalmers, the sole domestic bidder, submitted an unevaluated lump sum bid of $4,005,800 for manufacture and installation of the turbines. Hitachi America, Ltd. (hereafter referred to as "Hitachi"), the lowest foreign bidder, submitted an unevaluated lump sum bid of $3,400,000.
The solicitation for the hydro-turbine bids in the Amistad project noted that all contract awards were subject to the requirements of the Buy American Act. As interpreted by the Executive Order and the FPR, the Act requires the Section to add a six percent differential to the low foreign bid unless the low domestic bidder is a labor surplus area concern. In the latter event, a twelve percent differential is applied. The issues confronting us in this case arise from the Section's application of the differential to Hitachi's bid. First, should the differential have been six or twelve percent? Second, should the differential be applied only to the manufacturing and supplying the turbines to the railsite at Del Rio, Texas, or should it also be applied to the assembly and installation of the turbines performed at the damsite?
To determine whether the six or twelve percent differential should be applied to Hitachi's bid, the District contacted the United States Department of Labor to find if the city of York, Pennsylvania was a labor surplus area. The District specified the city of York because Allis-Chalmers, in designating its East Berlin Road plant as the principal place of performance, identified the city of York as the political subdivision in which that plant is located. Because the Department of Labor considered the city of York as a labor surplus area, the District applied the twelve percent differential to the Hitachi bid. The District then followed General Conditions 3.2 and 3.3 and what it perceived to be the requirement of 41 C.F.R. § 1-16.901-32 and the other pertinent regulations and subtracted bid items 17 (install turbines) and 18 (services of erecting engineers) from Hitachi's total bid. Thus $999,550 was deducted from Hitachi's unevaluated lump bid of $3,400,000.
The District applied the twelve percent differential to the result, added the two figures together, added $60,000 for foreign inspection, and added the deducted bid items 17 and 18 back into the total. Hitachi's final evaluated bid was therefore $3,748,054.
The District deducted the test costs of $198,750 from Allis-Chalmers' bid and deducted the discounts of $38,070.50. The final evaluated bid of Allis-Chalmers was $3,768,979.50, or approximately $20,000 higher than that of Hitachi. Accordingly, on June 21, 1979 the District recommended to the Section that the contract be awarded to Hitachi.
On June 13, 1979 Allis-Chalmers had been informally advised by Mr. Joseph Raetz of the Corps that bid items 17 and 18 would be deducted from Hitachi's bid before application of the Buy American differential. In response to this communication, Allis-Chalmers advised Mr. Raetz on June 15, 1979 that subtraction of items 17 and 18 prior to application of the differential was contrary to law and that the differential must be applied to the entire foreign bid. On June 18, 1979 Allis-Chalmers was advised that the Corps had reviewed its letter of June 15, 1979, but had maintained its decision to deduct bid items 17 and 18 before applying the differential.
In the course of reviewing the Corps' recommendation that the contract be *1262 awarded to Hitachi, the Section examined the documentation concerning the bid solicitations. The Section then questioned the District about the precise location of the East Berlin Road facility of Allis-Chalmers and whether it was within a labor surplus area. The District consulted the Department of Labor and learned that the East Berlin Road plant is not in the city of York, but is in West Manchester Township in the county of York. West Manchester Township is not a labor surplus area. On the basis of this information, the District concluded that a six percent rather than a twelve percent differential should be applied to the Hitachi bid. Whether the differential was six or twelve percent did not change Allis-Chalmers' position as a bidder, however, because Hitachi would continue to be the lowest bidder regardless of which differential were applied.
In July, 1979 Allis-Chalmers dispatched a telegram to the Section announcing its intention to have more than fifty percent of the costs in its bid performed in labor surplus areas. Allis-Chalmers received no reply to this telegram and assumed that the twelve percent differential would be applied. It was not until reading the report of the Section to the General Accounting Office (hereafter referred to as "the GAO") on or about August 9, 1979, that Allis-Chalmers learned that the six percent differential had been applied to the Hitachi bid.
On or about August 22, 1979 Defendant Joseph F. Friedkin, commissioner of the Section, advised the GAO that the Section intended to award the contract to Hitachi on or about September 6, 1979. On September 10, 1979 Allis-Chalmers received notice from Friedkin that the Section had awarded the contract to Hitachi on September 5, 1979. Hitachi may not, however, proceed to perform the contract until it receives official notice to proceed from the Section.
III. PROCEDURAL HISTORY
A. Administrative Protest
On June 22, 1979, by a letter to the Corps dated June 21, 1979, Allis-Chalmers officially protested the anticipated award of the contract to Hitachi. Allis-Chalmers requested that no contract be awarded until a final decision was reached on its protest. Because neither the Corps nor the Section responded to its protest, Allis-Chalmers protested the evaluation procedures to the GAO on June 28, 1979. Allis-Chalmers again requested that no action be taken in awarding the contract until the protest was resolved. The Section informed the GAO, by letter dated September 9, 1979, of its decision to award the contract to Hitachi notwithstanding the pendency of the Allis-Chalmers protest. After prolonged deliberation, the GAO issued its opinion denying the Allis-Chalmers protest on December 7, 1979. In re Allis-Chalmers Corporation, B-195311 (Dec. 7, 1979).
B. The Present Action
On September 12, 1979 Plaintiff Allis-Chalmers filed its complaint in this court seeking a temporary restraining order and a preliminary injunction against the Section to stop it from issuing the notice to proceed to Hitachi. On September 13, 1979, following a hearing at which the Section was represented, we issued a restraining order directing that the Section not issue the notice to proceed. By consent of the parties, the order was extended to October 19, 1979 on which date we held the hearing on the preliminary injunction. On that date our restraining order was continued until our present decision on the preliminary injunction.
On September 28, 1979 Hitachi moved to intervene as a Defendant and we granted the motion on October 2, 1979. On October 4, 1979 the South Texas and Medina Electric Cooperative moved to intervene, also as a Defendant, and on October 11, 1979 Local Union 1400, International Association of Machinists and Aerospace Workers, AFLCIO (hereafter referred to as "Local 1400") moved to intervene as a Plaintiff. Both of the latter motions were granted by our order of November 16, 1979.
Because we believe that the Section's award of the contract to Hitachi was in accordance with the mandates of the Act, *1263 the Executive Order, and the FPR, we issued an order on December 7, 1979 dissolving our restraining order of September 13, 1979 and denying Allis-Chalmers' motion for a preliminary injunction. This memorandum of law is in support of that order.
C. Preliminary Injunction
In approaching Allis-Chalmers' request for injunctive relief, we are faced with a variety of decisions establishing the standards by which we must proceed. Allis-Chalmers' original memorandum referred us to the traditional four-part test enunciated by our circuit court in Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir. 1978). The circuit listed the four requirements that must be met for a court to grant a preliminary injunction. The party moving for a preliminary injunction must show: 1.) A reasonable probability of eventual success on the merits; 2.) The movant will suffer irreparable injury if relief is not granted; 3.) The possibility of harm to other interested persons from the grant of the injunction does not outweigh the benefit to the movant; and 4.) The public interest is advanced by the grant of the injunction. 573 F.2d at 815.
Allis-Chalmers abandoned its reliance on the traditional balancing test of Kreps in its subsequent memorandum and referred us to numerous decisions from other federal courts in which injunctive relief was granted to disappointed bidders. See, e. g., General Electric Company v. Seamans, 340 F. Supp. 636 (D.C.D.C.1972); Rudolf F. Matzer & Associates, Inc. v. Warner, 348 F. Supp. 991 (M.D.Fla.1972).
Plaintiff finally urges us to apply the standard of review used by the District of Columbia Circuit Court in M. Steinthal & Company, Inc. v. Seamans, 147 U.S.App. D.C. 221, 455 F.2d 1289 (D.C.Cir.1971). Steinthal requires the moving party to prove that the government agency whose procurement contract award is under question transgressed the statutory boundaries within which it must operate.
We see no need, however, to adopt the District of Columbia test when a more recent Third Circuit decision controls our deliberation. Sea-Land Service, Inc. v. Brown, 600 F.2d 429 (3d Cir. 1979). The court in Sea-Land faced an action for injunctive and declaratory relief against the United States and its officers for the allegedly improper award of a procurement contract by the Navy. Our circuit court favorably cited the conclusion of the Steinthal tribunal that "the courts should not overturn any procurement determination unless the aggrieved bidder demonstrates there was no rational basis for the agency's decision." 600 F.2d at 434 (emphasis added). The court went on to establish the test with which we must approach the action presently before us: "A showing of clear illegality is an appropriate standard to impose on an aggrieved bidder who seeks judicial relief." 600 F.2d at 434 (emphasis added). The basis for placing such a heavy burden on an unsuccessful bidder rests with the great public interest in efficient government procurement and in avoiding excessive costs. Courts must recognize that judicial intervention into procurement contract protests causes delay in those contracts and increases costs, generally with little or no measurable benefit to the public. Under the four-part Kreps test, the fourth item (public interest) is judicially presumed to be so great in procurement contracts that the movant has the exceedingly difficult burden of firmly establishing the first item (likelihood of ultimate success on the merits) to our satisfaction.
Because we are required by Sea-Land to focus on the "ultimate success" requirement, the potentially irreparable injury to Allis-Chalmers (item two) and the harm caused by delay to the Section, Hitachi, and STEC/MEC (item three), become less significant in our deliberation. Although less significant in the face of the great public interest in efficient, timely government procurement, four of the interests of the parties presented to us in testimony retain some importance for us. The injury with which we are most distressed is the potentially great damage facing Allis-Chalmers. *1264 The loss of this contract will unquestionably weaken the Hydro-Turbine Division of the parent corporation. We note, however, the absence of testimony or evidence that loss of this contract would result in the cessation of manufacturing by this sole remaining domestic supplier of large hydro-turbines. The second interest is the loss of substantial employment opportunities for the York area, most notably to Local 1400, if the contract is awarded to the foreign company.
The other two interests with which we are concerned result from any delay in the performance of this procurement contract. Mr. Thor Anderson, vice president of the architectural firm that designed the Amistad project, testified that any delay in the award of performance of the hydro-turbine contract would result in a commensurate delay in the completion of the entire project. Mr. William Robson, general manager of STEC/MEC, testified that any delay in the initial delivery of power from the hydro-turbines would have two results. First, the consumers of electrical power in the service area of STEC/MEC would be forced to pay the higher rates required by the greater costs of the non-hydroelectric power now being produced. Second, the power now supplied is generated from the combustion of gas and oil. Any delay in the completion of this project will unavoidably and unnecessarily drain this country's gas and oil reserves. In this time of a national energy emergency, we must be cognizant of such a result.
The great interest of the public generally, and of the consumers of electrical power within the relevant area of Texas particularly, in the speedy and efficient award of this essential government procurement contract necessitate our following the Sea-Land, "clear illegality" test in our deliberations of Allis-Chalmers' allegations.
A question arises about the various remedies that may be at our disposal to resolve this matter in a particular way. The court in Sea-Land was very clear in its holding that a federal district court does not have the power to order a government agency to award a contract to a particular bidder. On the other hand, the Sea-Land court encouraged enjoining the performance of a contract if it was awarded as the result of a clear illegality. What options are left open to us? Obviously we cannot order the Section to award the contract at issue to Allis-Chalmers. Similarly, we do not believe that we have the power to order the Section to refrain from awarding the contract to Hitachi. We have little guidance, however, on whether we can specifically order the Section to reconsider the bids or to have the parties re-bid the contract. We believe we cannot. It appears to us that the only possible action that would not impermissibly infringe upon the discretion of the Section would be to enjoin the performance of the present contract. We would leave the further decision about how to proceed with the contract to the Section's sound discretion.
As we indicated previously, Allis-Chalmers is disputing two decisions of the Section in evaluating the bids for the Amistad project. First, Allis-Chalmers insists it should receive the benefit of the twelve percent differential because it will incur a majority of the costs of the project in certified labor surplus areas. Second, Allis-Chalmers argues that the differential should be applied to the total bid of Hitachi for the turbines, including the installation and on-site engineering costs. If Allis-Chalmers is unsuccessful in convincing us that either of the two decisions is clearly illegal, its case must fall. A six percent differential applied to the entire bid price of Hitachi or a twelve percent differential applied to the bid price without items 17 and 18 would be insufficient to make Allis-Chalmers' evaluated bid lower than Hitachi's.
Neither counsel for Plaintiffs nor counsel for Defendants have referred us to any federal court decisions regarding either of these issues. Our own research has similarly failed to uncover any precedent on point. Our analysis of these matters, therefore, is that of a case of first impression for the federal judiciary. We will examine the issue *1265 of the labor surplus area first and then review the application of the differential to the bid prices.[3]
IV. LABOR SURPLUS AREA CONCERN
Executive Order 10582, section 3(c) provides a basis for extending special consideration under the Buy American Act to American concerns that conduct their business in areas of substantial unemployment. This policy is more fully implemented by the FPR. Section 1-6.104-4(b) provides, in relevant part: "[A] 12 percent factor shall be used instead of the 6 percent factor if the firm submitting the low acceptable domestic bid is a . . . labor surplus area concern . . . ." (Emphasis added.) Sections 1-1.801(a) & (c) define labor surplus area concern as a concern that, together with its first-tier subcontractors, will perform substantially in a geographical area identified by the Department of Labor as an area of concentrated unemployment or underemployment or an area of labor surplus.
Our problem in this issue resulted from the failure of the Section to solicit, and of Allis-Chalmers to provide, sufficient information on which to base a meaningful decision about whether Allis-Chalmers is a labor surplus area concern. We agree with the Section that when the twelve percent differential was reduced to six percent, the Section had not acted arbitrarily, maliciously, or improperly. We also agree with Allis-Chalmers that it appears from the pleadings, documents, and testimony before us that Allis-Chalmers is a labor surplus area concern. At the very least, Allis-Chalmers is entitled to a review of whether the twelve or six percent differential should be applied.
Allis-Chalmers' position is essentially that the Section abused its discretion by not responding to Allis-Chalmers' telegram of July 16, 1979 with any requests for more information. The telegram stated that Allis-Chalmers intended to perform a substantial portion of the contract work in labor surplus areas in the city of York and on the jobsite in Texas. The Section responds that it did not contact Allis-Chalmers for further information because the question was academic, i. e., whichever differential were applied to the bifurcated bid price, Hitachi would remain the lowest bidder. Thus, it is clear that the Section made no decision about the eligibility of Allis-Chalmers to have the twelve percent differential applied.
The Comptroller General has ruled that information about a bidder's qualification as a labor surplus area concern may be submitted after the bids have been opened when the solicitation for bids fails, as here, to request the necessary information. Decision B-148720 (May 7, 1962) (letter to Secretary of the Navy); Decision B-146258, 41 Comp.Gen. 160 (August 28, 1961) (letter to Secretary of the Army).
In light of the above decisions of the Comptroller General and the mandate and policy of section 1-6.104-4(b), we agree with Allis-Chalmers that the Section abused its discretion by not initiating requests for additional information from Allis-Chalmers before awarding the contract to Hitachi. Whether the matter was academic (as the Section maintains) or not, it is the Section's responsibility to comply with the FPR. At the same time it is our "obligation to insure agency compliance with statutory and regulatory law." Sea-Land Service, Inc. v. Brown, supra, 600 F.2d 429, 434 (3d Cir. 1979).
*1266 The FPR requires that the twelve percent differential shall be applied when the low domestic bidder is a labor surplus area concern. The Section clearly has an implied duty to determine whether the low domestic bidder is a labor surplus area concern especially when its attention is called to a colorable allegation of an incorrect application of the six percent differential. In the latter circumstance, the Section must make some reasonable effort to gather sufficient information to substantiate its decision. Upon receiving Allis-Chalmers' telegram, the Section made no effort whatsoever to determine the validity of the allegations contained therein and thus arbitrarily refused to fulfill its regulatory duties.
This is not an instance in which we are improperly substituting our judgment for that of an agency as proscribed by Sea-Land Service, Inc. v. Brown, supra, 600 F.2d 429, 435 (3d Cir. 1979). Rather, it is a matter of the agency refusing to make a judgment it is obligated by regulation to make. We hold therefore that the Section's conduct in refusing to review the allegations of Allis-Chalmers regarding its status as a labor surplus area concern constituted a clear illegality.[4]
Were this the only issue facing us at this time, we would certainly enjoin the performance of the contract by Hitachi pending a proper evaluation of the labor surplus area status of Allis-Chalmers. We are dealing, however, with the further question about application of the differential to various parts of the lump sum bid. If we find that the differential, whether six or twelve percent, was properly applied to Hitachi's bid price less items 17 and 18, we need not decide how to resolve the labor surplus area issue.
V. APPLICATION OF THE BUY-AMERICAN DIFFERENTIAL
As much as we would prefer to see an American concern performing a government contract, we are constrained to act within the statutory and regulatory framework through which the government may award procurement contracts. Our power is limited to reviewing the application of statutes and regulations promulgated by the other branches of federal government. The review simply determines whether such an application comports with the governing language. Arguments that particular interpretations of the law would lead to undesirable results may be made but are not persuasive in the face of the language of the Act, the Executive Order, and the FPR.
Allis-Chalmers advances the argument that bifurcation of a bid before application of the differential would invite unbalanced bidding. Because it alleges no such unbalanced bidding by Hitachi or the other foreign bidders, we presume that Allis-Chalmers is speculating about potential future abuse of the bidding process. We believe, however, that any government agency must reject materially unbalanced bidding as fraudulent. See In re Allis-Chalmers Corporation, supra, B-195311, p. 9 (Dec. 7, 1979); Edward B. Friel, Inc., 55 Comp.Gen. 231 (1975). We also have faith in the ability of the responsible members of an agency to detect materially unbalanced bids by comparing all of the submitted bids and its own estimates.
We also agree with the Comptroller General that the unique size of hydro-turbines should not alter the application of the differentials. Allis-Chalmers insists that because the turbines cannot physically be totally manufactured and transported to the delivery point of Del Rio, Texas, the final assembly of the parts is not merely installation, but is actual manufacturing. As part of the manufacturing process, Plaintiff argues, the work done at damsite should have the differential applied to it. The important consideration, however, is the delivery to Del Rio, Texas. The sub-assemblies delivered there are the end products to which the differential must be applied. See In re Allis-Chalmers Corporation, supra, B-195311, pp. 8-9 (Dec. 7, 1979). The unique size of the turbines necessitates that particular interpretation of the regulations.
*1267 We must be primarily concerned, of course, with the accurate interpretation of the Buy-American language, both statutory and regulatory. Allis-Chalmers ascribes particular significance to the clause in the Executive Order 10582 that defines bid or offered price of materials of a foreign corporation as "the bid or offered price of such materials delivered at the place specified in the invitation to bid including applicable duty and all costs incurred after arrival in the United States." Executive Order 10582 § 1(c). (Emphasis by Allis-Chalmers.) Allis-Chalmers looks at the emphasized phrase as requiring that the differential be applied to the entire bid. We disagree.
Allis-Chalmers ignores the first part of the definition defining the bid or price as that of the materials "delivered at the place specified in the invitation". Considering the entire clause, plus the requirement of applying a differential to all foreign bids, we interpret it as requiring application of the differential to all costs incurred in manufacturing and presenting the materials to the point of delivery. As mentioned above, the point of delivery is Del Rio, Texas, and the Section properly limited the application of the differential to the bid price of Hitachi for delivering the turbines to Del Rio. Items 17 and 18 are bid prices for services and installation after delivery of the turbines and the differential may not be applied to them.
We may also point to a section of the FPR supporting the Section's approach to application of the differential. Section 1-6.104-4(b) provides:
When more than one line item is offered in response to an invitation for bids or request for proposals, the appropriate factor shall be applied on an item-by-item basis, except that the factor may be applied to any group of items as to which the invitation for bids or request for proposals specifically provides that award is to be made on a particular group of items. (Emphasis added.)
The line items to which the invitation for bids clearly provided for application of the differential are items 1 through 16. General Conditions 3.2 and 3.3 in the invitation for bids indicate specifically that the differential was to be applied to the parts of the turbine delivered to Del Rio, Texas. The bid amounts for Service and Erecting Engineers after delivery are expressly exempted from the Buy American Act differential by the GC-3.3. Allis-Chalmers' claim that it was unaware of the full meaning of that General Condition is both unfortunate and immaterial. By an analysis of the FPR and the General Conditions, it is clear to us that the Section was virtually required to deduct items 17 and 18 from Hitachi's lump sum bid before applying the differential.
Although the preceding discussion indicates our preliminary opinion regarding the ultimate propriety of the Section's application of the differential, we need make no final determination. The standard of review with which we must approach this case is the Sea-Land "clear illegality" test. We may grant a preliminary injunction halting the performance of this procurement contract only if the Section's application of the differential was clearly illegal. Allis-Chalmers unquestionably fails to satisfy this burden. It may very well be that Hitachi would have had a claim of clear illegality had the Section applied the differential to the entire bid. See In re Fairbanks, Morse & Company, 41 Comp.Gen. 70 (1961) (letter of transmittal). We hold, therefore, that the elimination of Items 17 and 18 from the Hitachi bid before application of the Buy-American differential is not clearly illegal.
Our opinion for much of this issue parallels the decision of the GAO to deny Allis-Chalmers' protest of this contract. See In re Allis-Chalmers Corporation, supra, B-195311, pp. 4-10 (Dec. 7, 1979). The GAO's final decision concluded:
[T]he language of the Act, the E.O. and the FPR does not prohibit the exclusion of installation costs and other services incurred or provided after delivery to the Government of the end product before application of the Buy American differential. *1268 Allis-Chalmers, supra, pp. 6-7.[5] Although we are certainly not obliged to follow the GAO's decision in this or any other matter, we are entitled to accord it substantial deference in our deliberations. See, e. g., Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 106, 99 S. Ct. 1601, 1611, 60 L. Ed. 2d 66, 81 (1979); Sea-Land Service, Inc. v. Brown, supra, 600 F.2d 429, 434 (3d Cir. 1979).[6]
The GAO opinion is further strengthened in our mind by the longevity of its controlling precedent, In re Fairbanks, Morse & Company, supra, 41 Comp.Gen. 70 (1961). It is a basic rule of construction that a long-standing interpretation of statutory or regulatory requirements by the agency charged with administering them is entitled to great weight when the statute or regulations come under judicial review. See, e. g., Red Lion Broadcasting Company v. Federal Communications Commission, 395 U.S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969); Commissioner of Internal Revenue v. First Security Bank of Utah, N.A., 405 U.S. 394, 92 S. Ct. 1085, 31 L. Ed. 2d 318 (1972). For eighteen years the Comptroller General's opinion in Fairbanks, Morse has stood without legislative or administrative alteration of the regulations on which it was based. The Comptroller General interpreted the Buy-American requirements in Fairbanks, Morse in a dispute very similar to Allis-Chalmers' protest. He concluded that the differential should be applied only to the part of the bid of a foreign corporation to deliver some hydro-turbines to the point of delivery. The bids for engineering and installation of the turbines should not be included in the Buy-American computations. The continued and recent reaffirmation by the Comptroller General of Fairbanks, Morse in Allis-Chalmers and other opinions indicates satisfaction in both Congress and the procuring agencies with the contested interpretation of the Buy-American requirements.
In the course of our preceding analysis of the application of the Buy-American differential, we continually considered an important aspect of the underlying policy of the Act: Protection of American labor and business from cheap foreign labor. Consistent with that policy it is natural to apply the differential only to the hydro-turbine sub-assemblies delivered to Del Rio. From that point in the performance of the contract, the engineering and installation bid prices, largely labor costs, are performed by American labor. We see no basis in the policy of the Act to apply the differential to the services performed after delivery of the turbines when those services are a discreet item in the bidding and are performed entirely by American labor.
Along similar policy lines we reject the argument advanced by Allis-Chalmers in its petition to the GAO for reconsideration of the December 7, 1979 opinion. Allis-Chalmers states that the GAO decision "permits foreign bidders to control the amount of work, and thus the costs, to which the Buy American Act differential applies." This control would presumably occur by leaving some of the assembly and other costs to be performed after delivery in the United States. This work would then be done by American labor. The GAO position in this matter could conceivably lead to greater use of American labor by foreign corporations.
We realize, of course, that this result may be effectively negated by other GAO decisions requiring, when possible, that a completed unit be delivered as the end product to which the differential is to be applied. In re Fairbanks, Morse & Company, supra, 48 Comp.Gen. 384 (1968); In re Veterans' *1269 Administration, 46 Comp.Gen. 813 (1967). But when, as here, a single, completed unit cannot be delivered as the end product, we see no conflicts with the underlying policy of the Act.
VI. CONCLUSION
The Section incorrectly applied the six percent Buy-American differential to the Hitachi bid without sufficient background information. We do not hold that the twelve percent differential should have been applied, but merely suggest that the Section should have elicited and considered more information about the labor surplus status of Allis-Chalmers.
We conclude, however, that the section correctly bifurcated the total lump bid of Hitachi and properly declined to apply the differential to Items 17 and 18 of the bid. The Buy American Act differential should only be applied to the bid prices of the turbine sub-assemblies delivered to the railsite at Del Rio, Texas.
Because Allis-Chalmers needed to convince us of the clear illegality of both of the above decisions of the Section, but only succeeded with one, we denied its request for a preliminary injunction by our order dated December 7, 1979.
NOTES
[1] See, e. g., 75 Cong.Rec. 3172 (1933); 75 Cong. Rec. 3254 (1933).
At the time the bill was under consideration, one specific project, for the construction of the Boulder Dam, was brought to Congress' attention in which a foreign bidder competed with American interests. German bidders threatened to win a $6,000,000 contract from the government for the supply of hydro-electric turbines. 75 Cong.Rec. 3267 (1933).
[2] 75 Cong.Rec. 3257 (1933). Congress also feared the possibility of foreign companies "dumping" their products into the American market. But because Congress has recently enacted an amendment to the Tariff Act of 1930 in which an antidumping duty is imposed, we believe that the principal remaining rationale for the Buy American Act is the potential for cheap foreign labor to undercut American industry. See Trade Agreements Act of 1979, July 26, 1979, P.L. 96-39, Tit. I, 93 Stat. 150 et seq., § 101, amending Tariff Act of 1930, Tit. VII, subtit. B., § 731, 19 U.S.C. § 1673.
[3] We reject the Section's contention that venue was improperly laid in this District. First, Allis-Chalmers is authorized by 28 U.S.C. § 1391(e)(2) to bring the action in the judicial district in which "the cause of action arose." Under this section, venue is proper in the district that bears a substantial relationship to the cause of action, Lamont v. Haig, 192 U.S.App. D.C. 8, 590 F.2d 1124 (D.C.Cir.1978), or where the injury resulting from the alleged wrongdoing is felt. Township of Long Beach v. City of New York, 445 F. Supp. 1203, 1207 (D.N.J. 1978). Second, the Section was represented by the office of the United States Attorney at the temporary restraining order hearing in September and did not then object to venue. We deem this non-opposition a waiver of any defense of improper venue.
[4] We note that our holding here concurs with that of the GAO. In re Allis-Chalmers Corporation, supra, B-195311, pp. 10-11 (Dec. 7, 1979).
[5] Each party's brief cited and relied upon various decisions by the Comptroller General in past applications of the Buy-American differential. Because we believe that the GAO decision in Allis-Chalmers accurately summarizes and analyzes the applicable Comptroller General precedents, we regard Allis-Chalmers as presenting the definitive GAO opinion on this issue and will not refer to prior decisions.
[6] Although not binding on our decision to give weight to the GAO opinion, we note that counsel for Allis-Chalmers urged in open court that we should wait for the GAO opinion to resolve any questions we may have had. T-107. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1960849/ | 301 N.W.2d 604 (1980)
STATE of North Dakota, Plaintiff/Appellee,
v.
Gary SHELDON, Defendant/Appellant.
Crim. No. 714.
Supreme Court of North Dakota.
October 30, 1980.[*]
*606 Frederick E. Saefke, Jr., Bismarck, for defendant and appellant.
John Romanick, State's Atty., Washburn, for plaintiff and appellee.
PAULSON, Justice.
Charles Gary Sheldon appeals from a judgment of conviction for reckless endangerment entered against him on February 25, 1980, by the McLean County District Court. A 12-member jury returned a guilty verdict against Sheldon on the charge of reckless endangerment. We affirm the judgment of conviction.
At 8:30 p. m. on Monday, March 19, 1979, Deputy Sheriffs James Anderson and Douglas Kresbach received a call from the McLean County sheriff's office at Washburn. The sheriff's office informed the deputies that Dorothy Sheldon, the wife of the defendant and appellant, had requested assistance due to a domestic disturbance at the couple's mobile home. When the deputies arrived there, Mrs. Sheldon was waiting for them outside of the mobile home. She told the deputies that Sheldon had been drinking and had been using physical force against members of the family. The deputies assured Mrs. Sheldon that they would protect her until she could safely leave the mobile home.
Mrs. Sheldon requested that the deputies keep Sheldon out of the bedroom because Mrs. Sheldon wished to gather some of her belongings. Sheldon was permitted to enter the master bedroom, however. Deputy *607 Anderson waited outside the bedroom. After Sheldon started arguing with his wife in the bedroom, Anderson intervened and requested that Sheldon allow his wife to leave. Mrs. Sheldon was allowed to leave the bedroom but, as she turned, she saw Sheldon reaching for his gun holster and she exclaimed "My God, he's going for his gun".
Deputy Anderson looked into the bedroom and saw Sheldon reaching for his gun. Anderson jumped back and drew his revolver and told Sheldon to put his gun away. Sheldon denies that he heard Anderson's request to put his gun down. Anderson pointed his revolver around the corner of the hallway where he was standing and into the bedroom. Sheldon saw Anderson's gun and fired his gun at it. The fragments of the bullet passed through the wall of the mobile home and struck Anderson in his stomach and hand. Anderson's wounds were not disabling and he was able to leave the mobile home without assistance.
On March 20, 1979, Deputy Anderson signed a complaint which charged Sheldon with attempted murder. Before commencement of the trial, the State requested that the court give an instruction on the lesser included offense of aggravated assault. Sheldon's counsel objected to the State's request on the basis that intoxication as a defense would not be available to Sheldon on the lesser included offense of aggravated assault. Sheldon's counsel contends that the inclusion of the instruction on aggravated assault violated due process. At trial, Sheldon's counsel requested instructions on the lesser included offenses of simple assault, menacing, and reckless endangerment; however, Sheldon's counsel alluded to as error the inclusion of any lesser included offenses in the jury instructions on the basis that instructions on lesser included offenses are solely within a defense counsel's authority to request.
The district court denied Sheldon's requested instructions on intoxication as a defense; on what constitutes a dwelling; on the offense of menacing; and on the right to employ force. Sheldon's counsel objected to the instruction given by the court on the definition and meaning of "intent". Sheldon's counsel argued that the presumption included in the instruction on "intent" violated the rule announced by the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Sheldon's counsel also objected to the wording used by the district court in the instruction on the crime of reckless endangerment.
Sheldon's counsel objected to the form of the verdict given to the jury on the crime of reckless endangerment. Sheldon's counsel contends that the form of the verdict amounted to a special verdict. Finally, Sheldon contends that the jury improperly arrived at its verdict and he relies upon affidavits supplied by several jurors who expressed surprise at the penalty imposed for the crime of reckless endangerment. The jury deliberated for approximately ten hours and, after a brief intermission, returned after one-half hour of further deliberations to render a verdict.
The issues presented for our determination are as follows:
(1) Whether or not the district court committed constitutional error when the court submitted instructions on lesser included offenses to the jury;
(2) Whether or not the district court committed error when the court denied Sheldon's requested instructions;
(3) Whether or not the district court committed error when the court submitted the instruction on intent;
(4) Whether or not the district court committed error when the court submitted a form of the verdict accompanied by a question concerning the jury's deliberations;
(5) Whether or not jury misconduct was a factor in arriving at the jury's verdict;
(6) Whether or not the district court committed error when the court denied Sheldon's motions for acquittal on the charge of attempted murder; and
*608 (7) Whether or not the evidence was sufficient to support the jury's verdict of guilty of the crime of reckless endangerment.
I.
Sheldon contends that the district court erred when it submitted instructions on the offenses of aggravated assault, simple assault, and reckless endangerment. Apparently the objection is three-fold. Firstly, Sheldon's counsel contends that instructions concerning lesser included offenses are solely the prerogative of the defendant. Secondly, Sheldon's counsel contends that inclusion of the instructions on lesser included offenses violated Sheldon's right to adequate notice of the charges against him. Finally, Sheldon's counsel contends that aggravated assault, simple assault, and reckless endangerment are not lesser included offenses within the offense of attempted murder.
Sheldon's counsel bases the first part of his argument on the case of Berra v. United States, 351 U.S. 131, 76 S. Ct. 685, 100 L. Ed. 1013 (1956), where the United States Supreme Court stated that a defendant in a criminal case is entitled to an instruction on a lesser included offense as a matter of right if the evidence would permit the jury to find him guilty of that offense. Sheldon's counsel extends this argument to the instant case and argues that the defendant alone has the right to instructions on lesser included offenses. We disagree with Sheldon's argument on the basis that it misconstrues the nature and history of the lesser-included-offense doctrine which is contained in Rule 31(c) of the North Dakota Rules of Criminal Procedure.
The Committee Note accompanying subdivision (c) of Rule 31 of the Federal Rules of Criminal Procedure stated that Rule 31(c) was a restatement of existing law. The primary purpose of the statutory predecessors of Rule 31(c), F.R.Crim.P., was to aid the prosecution where its proof failed to prove all of the elements of the offense charged in the indictment.[1] The defendant may avail himself of instructions on lesser included offenses under certain factual circumstances. Similarly, the prosecution may also request instructions on lesser included offenses. State v. Houser, 261 N.W.2d 382 (N.D.1977); State v. Piper, 261 N.W.2d 650 (N.D.1978). Rule 31(c), N.D.R.Crim.P., was adopted from the Federal Rules of Criminal Procedure. We believe that the history surrounding Rule 31(c), F.R.Crim.P., applies with equal force to Rule 31(c), N.D.R. Crim.P.
The second part of Sheldon's counsel's argument involves Sheldon's Sixth Amendment right "to be informed of the nature and cause of the accusation against him". Sheldon's counsel's argument apparently is based on the premise that inclusion of lesser included offenses in the district court's jury instructions violated Sheldon's Sixth Amendment rights. In Walker v. United States, 135 App.D.C. 280, 418 F.2d 1116 (1969), the United States Court of Appeals for the District of Columbia held that an indictment submitted in a criminal case is sufficient notice to the defendant that he may be called upon to defend a lesser included charge. This rule has been reaffirmed in opinions by many State courts. E. g., People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974); Wisner v. State, 216 Kan. 523, 532 P.2d 1051 (1975); State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977). Thus, where a jury returns a guilty verdict to a lesser included offense not specifically stated in the information, the defendant is not deprived of his Sixth Amendment right to notice of the charges against him.
In the instant case, the information alleged that Sheldon committed the offense of attempted murder in violation of §§ 12.1-16-01 and 12.1-06-01, N.D.C.C., by intentionally and knowingly attempting to cause the death of another human being. The *609 information alleged that Sheldon fired a .357 magnum pistol at Deputy Anderson in Sheldon's mobile home and that the bullet injured Anderson but failed to kill him. The contents of the information fully complied with Rule 7(c), N.D.R.Crim.P. In light of the history surrounding Rule 31(c), N.D.R.Crim.P., and the authority cited above, we conclude that Sheldon's rights under the Sixth Amendment were not violated.
Sheldon argues that the offenses of aggravated assault, simple assault, and reckless endangerment are not lesser included offenses within the offense of attempted murder. The doctrine of lesser included offenses was discussed in Piper, supra 261 N.W.2d at 654, wherein we stated that in order to submit an instruction on a lesser included offense, a two-part test must be resolved: the instruction must include an offense which is a lesser included offense to the offense charged; and the lesser included offense instruction can only be given if evidence exists which will create a reasonable doubt as to the greater offense and the evidence will support beyond a reasonable doubt a conviction of the lesser included offense.
A concise analysis of what we consider to be a necessarily included offense is contained in § 12.1-01-04(15), N.D.C.C.[2] Thus, there are three basic variants of necessarily included offenses. The offense of aggravated assault is defined in § 12.1-17-02, N.D.C.C.,[3] and attempted murder is defined in §§ 12.1-06-01 and 12.1-16-01, N.D.C.C.[4] Examination of these three variants of necessarily included offenses demonstrates that aggravated assault is not a lesser included offense of attempted murder.[5] The Committee Minutes concerning *610 the adoption of the present criminal code indicate that the word "assault" defines what is commonly considered a battery.[6] Under the offenses of simple assault and aggravated assault, bodily injury or serious bodily injury must result before an offender is guilty of assault. The Committee Minutes also discussed the fact that the offenses of simple assault and aggravated assault would eliminate liability for a traditional battery, which only included an unauthorized touching, while simple assault and aggravated assault require bodily injury. Attempted murder requires that the actor engage in conduct which constitutes a substantial step toward commission of the crime. A substantial step is any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime.
Aggravated assault under subsections 1, 2, and 3 of § 12.1-17-02, N.D.C.C., is not a lesser included offense to the offense of attempted murder because the elements necessary to prove commission of the offenses differ. Aggravated assault, except under subsection 4 of § 12.1-17-02, N.D.C.C., requires that a bodily injury be suffered by the victim of the offense. On the other hand, "criminal attempt" as defined in § 12.1-06-01(1), N.D.C.C., requires that the actor engage in a substantial step toward commission of the crime. The offense of attempted murder does not require that the victim of the offense suffer a bodily injury. Although a substantial step toward commission of the crime may well involve a bodily injury, it is clear that the elements of proof involved in the offenses of aggravated assault under subsections 1, 2, and 3 of § 12.1-17-02, N.D.C.C., and attempted murder differ, but not as to subsection 4 of § 12.1-17-02, N.D.C.C. This variance of proof, except as to subsection 4 of § 12.1-17-02, is fatal to the categorization of aggravated assault as a lesser included offense of attempted murder. However, aggravated assault under subsection 4 of § 12.1-17-02 can be a lesser included offense of attempted murder.
Although Sheldon is correct in his contention that aggravated assault is not a lesser included offense of attempted murder, the error was corrected by the instructions given by the district court. After defining for the jury the offenses of attempted murder, aggravated assault, simple assault, and reckless endangerment, the jury was instructed that if it should find the defendant not guilty of attempted murder, it should then in a like manner successively consider aggravated assault, simple assault, and reckless endangerment. In order to find the defendant guilty of a crime defined at any step, the jury was required to find the defendant guilty beyond a reasonable doubt. This form of instruction is known as a step instruction and it is designed to permit a jury to step-by-step consider a defendant's guilt from the most serious primary charge through each included offense to the least serious charge. Because the jury did not convict the defendant of the offense of aggravated assault, the inclusion of the instruction on aggravated assault operated only as mere surplusage and was not prejudicial error. The jury merely moved to another step in the list of offenses and disregarded the offense of aggravated assault.
Sheldon also contends that simple assault and reckless endangerment are not lesser included offenses of the offense of attempted murder and that inclusion of these offenses in the jury instructions was prejudicial. Our analysis of Sheldon's argument *611 is made difficult because Sheldon's counsel interposed the instructions on the offenses of simple assault and reckless endangerment, yet claimed that any instruction regarding lesser included offenses was erroneous. Sheldon was convicted of the crime of reckless endangerment. Sheldon's counsel is in effect arguing that he may avail himself of probable errors which he helped to perpetrate. Sheldon's counsel's actions fall within the timehonored rule that a party to a criminal proceeding cannot complain of errors which he invited upon the court. State v. Myers, 276 N.W.2d 36 (Minn.1979); People v. Hyatt, 96 Cal. Rptr. 156, 18 Cal. App. 3d 618 (1971); People v. Crosby, 19 Mich.App. 135, 172 N.W.2d 506 (1969). See also State v. Berger, 235 N.W.2d 254, 260, 262, et seq. (N.D.1975).
Although we are precluded from analyzing the merits of Sheldon's contention that reckless endangerment is not a lesser included offense within the offense of attempted murder, we realize that the concept of lesser included offenses is a difficult one. There are two probable variants of lesser included offenses. The first variant exists when it is impossible to commit the greater offense without committing the lesser included offense. Therefore, the elements of the offenses are the same regardless of the proof offered in a particular case. The second variant exists when the second offense is presumptively necessarily included within the offense charged in the case. However, the evidence adduced at trial may preclude an instruction on a lesser included offense if the elements of the primary offense are clearly established by the evidence.[7] A lesser included offense instruction is proper when the primary offense charged requires that the jury find the existence of an additional factual element which is not required for conviction of the lesser included offense, under the rationale expressed in Houser, supra and Piper, supra.
II.
The second issue concerns whether or not the district court committed error when the court denied Sheldon's requested instructions. Sheldon's counsel submitted instructions on intoxication, the definition of the term "dwelling", the offense of menacing, and the right to employ force. The district court denied these proposed instructions and submitted instructions on the limits on the use of force and intoxication as a defense to the charge of attempted murder. The district court did not submit instructions to the jury on the definition of "dwelling" or on the offense of menacing.
Sheldon's counsel does not specify how the instructions given by the district court constituted error and we find no errors in the instructions submitted by the court on these issues. The district court was not required to submit instructions in the specific language requested by the defendant. State v. Folk, 278 N.W.2d 410 (N.D.1979). The district court did not commit error when it denied giving the instructions on the definition of "dwelling" and on the offense of menacing because those requested instructions were not applicable in the instant case. A trial court may properly refuse to submit an inapplicable instruction to the jury. State v. Samuels, 205 Neb. 585, 289 N.W.2d 183 (1980).
III.
The district court submitted the following instruction on intent:
"The mental state or intent with which an act is done is a mental process and as *612 such generally remains hidden in the mind where it is conceived, and it is rarely, if ever, susceptible of proof by direct evidence. Intent may be inferred from the outward manifestations, by the words or acts of the party entertaining it, and the facts or circumstances surrounding or attending upon the act sought to be proved, with which it is charged to be connected. It is presumed, however, that an unlawful act is done with an unlawful intent."
The instruction given on intent was adopted from North Dakota Pattern Jury Instruction 1313. Sheldon contends that the last sentence of the instruction violates the requirement of the Fourteenth Amendment that the State prove every element of a criminal offense beyond a reasonable doubt. In Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), the United States Supreme Court held that a jury instruction which stated that "the law presumes that a person intends the ordinary consequences of his voluntary act" violated the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt.
The Supreme Court's decision in Sandstrom was based upon the probable effect of the instruction upon the jury. Because the jury might have interpreted the challenged presumption as conclusive or as shifting the burden of persuasion, the Court concluded that the instruction was unconstitutional. In Sandstrom, the jurors were not told that they might infer the conclusion that a person intends the ordinary consequences of his voluntary act. An instruction containing a permissible inference is constitutional. Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969); Ulster County Court v. Allen, 442 U.S. 140, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979).
The presumption contained in the instruction given in Sandstrom v. Montana, supra, is quite similar to the presumption at issue in the instant case. Also, the charge of attempted murder requires proof of intent just as the charge of deliberate homicide present in Sandstrom required proof of intent. However, Sheldon was convicted of the crime of reckless endangerment which requires proof of the mental state of recklessness. State v. Hanson, 256 N.W.2d 364 (N.D.1977). Thus, we are faced with a situation where the challenged jury instruction focuses upon an element of the crime for which the defendant was being tried but of which he was not ultimately convicted. State v. Chyle, 297 N.W.2d 409 (N.D.1980).
The presumption contained in North Dakota Pattern Jury Instruction 1313 seems to violate the directive of the United States Supreme Court as stated in Sandstrom v. Montana, supra.[8] The jury may interpret the challenged presumption to be conclusive. See Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952). Likewise, the jury may interpret the challenged presumption as shifting the burden of persuasion. See Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). A presumption which shifts the burden to the defendant of disproving an element of the crime charged violates the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt. Mullaney v. Wilbur, supra; In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).
The State contends that the error was harmless error because Sheldon was ultimately convicted of reckless endangerment, *613 which does not require the mental state of intent. In Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), the United States Supreme Court stated that an unconstitutional jury instruction on an element of the crime can never constitute harmless error. However, we believe that the Supreme Court's directive applies to the situation where the unconstitutional jury instruction was given on an element of the crime for which the defendant was convicted. In the instant case, the defendant, Sheldon, was convicted of the crime of reckless endangerment. The challenged instruction was given in connection with the charge of attempted murder and not in connection with the charge of reckless endangerment. Thus, we believe that the harmless-error doctrine applies in the instant case.
In Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967), rehearing denied 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241, the United States Supreme Court stated that some constitutional errors may constitute harmless errors. The Supreme Court stated:
"All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction."
The instruction on intent which contained the challenged presumption had no effect upon the State's burden of proving every essential element of the offense of reckless endangerment beyond a reasonable doubt.[9] Thus, the challenged presumption in the instruction on intent did not have any effect upon the charge of reckless endangerment. The district court properly instructed the jury on the necessary elements of the crime of reckless endangerment.[10] We conclude that the district court's error in including the challenged presumption in the instruction on intent was harmless error under Rule 52(a) of the North Dakota Rules of Criminal Procedure. See also State v. Hager, 271 N.W.2d 476 (N.D.1978).
IV.
Sheldon contends that the form of the verdict submitted by the district court to the jury was a special verdict. The district court's form of the verdict stated:
"VERDICT OF GUILTY OF RECKLESS ENDANGERMENT
"We, the jury duly empaneled and sworn to try the above-entitled action, do find the defendant, Gary Sheldon, GUILTY of the offense of reckless endangerment.
"At the time of the offense did the circumstances manifest an extreme indifference by the defendant to the value of human life?
"Yes____ No____"
A special verdict is one in which the jury finds all the facts and then refers the case to the court for a decision on those facts. It is rendered in lieu of a general verdict and contains findings on all material issues in the case. Special interrogatories, on the other hand, are propounded as to selected issues of fact, and answers to them *614 are given in connection with, and not in substitution of, a general verdict. The form of the verdict given in the instant case was not a special verdict because the jury decided whether or not Gary Sheldon was guilty of the crime of reckless endangerment.
Rule 31(e), N.D.R.Crim.P., lists four instances where the jury must answer interrogatories in addition to returning a verdict. See State v. Bartkowski, 290 N.W.2d 218 (N.D.1980). Although subdivision (e) of Rule 31 is labeled "Special verdicts," it is clear that this subdivision does not deprive the jury of its function of determining the facts of the case. To ask the jury special questions might be said to infringe upon the power of the jury to arrive at a general verdict without having to support it by reasons; or upon the power of the jury to follow or not to follow the instructions of the court. However, Sheldon was not deprived of his Sixth Amendment right to a jury trial by the question posed to the jury in the form of the verdict. See United States v. James, 432 F.2d 303 (5th Cir. 1970); State v. Heald, 307 A.2d 188 (Me. 1973). The interrogatory was not designed to coerce the jurors into rendering a guilty verdict. We conclude that the constitutional concept of trial by jury was not violated by the interrogatory submitted to the jury in this case because the interrogatory was necessary to distinguish whether Sheldon was guilty of a felony or a misdemeanor under the reckless endangerment statute.[11] Depending upon the answer, the interrogatory might even have been helpful to Sheldon. Under § 12.1-17-03, N.D.C.C., the offense of reckless endangerment is a class C felony if the circumstances manifest an extreme indifference to the value of human life. In all other instances the offense is a class A misdemeanor. See State v. Kroeplin, 266 N.W.2d 537 (N.D.1978), for the requirements of proof that must be met in proving reckless endangerment.
V.
Sheldon alleges that the jury was guilty of misconduct when it arrived at the verdict of guilty to the charge of reckless endangerment. In support of his argument, Sheldon submitted the affidavits of six of the jurors who returned the verdict of guilty of reckless endangerment. The affidavits recited that the jurors were surprised by the punishment accompanying the conviction of reckless endangerment. None of the affidavits recited that the jurors did not want to return a guilty verdict against Sheldon.
The State responds to the Sheldon argument with the argument that a jury cannot impeach its verdict. The common-law rule against allowing jurors to impeach their verdict was first formulated by Lord Mansfield in the case of Vaise v. Delaval.[12] Rule 606(b)[13] N.D.R.Ev., contains the rule against impeachment of jury verdicts. Rule 606(b) operates to prohibit testimony as to certain conduct by the jurors which has no verifiable outward manifestations. Thus, testimony that a juror misunderstood the court's instructions is excluded from evidence. Walker v. United States, 298 F.2d 217 (9th Cir. 1962); United States v. Chereton, 309 F.2d 197 (6th Cir. *615 1962), cert. den. 372 U.S. 936, 83 S. Ct. 883, 9 L. Ed. 2d 767 (1963). The affidavits of the jurors point out that the jurors were convinced that Sheldon had committed an offense but the jurors were mistaken regarding the punishment imposed for a conviction of the crime of reckless endangerment. Sentencing is not within the province of the jury.
The United States Supreme Court summarized the rules concerning a juror's right to impeach his verdict in Stein v. New York, 346 U.S. 156, 73 S. Ct. 1077, 97 L. Ed. 1522 (1952). Public policy does not favor public or private post-trial inquisition of jurors as to how they reasoned because our judicial system could not tolerate the harassment and intimidation which would result from such a practice.[14] Thus, courts cannot receive evidence of a compromise in a criminal case whereby some jurors exchanged their convictions on one issue in return for concessions by other jurors on different issues. Hyde v. United States, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114 (1911). If evidence could be secured concerning the jurors' deliberations, the consequent investigation could serve to restrict the jurors' freedom of discussion.
The departure of the jury from the instructions given in a case is an inseparable risk from the nature of jury secrecy and independence. Rule 606(b), N.D.R.Ev., does provide that a juror may testify on questions concerning whether or not extraneous prejudicial information was brought to the jury's attention, whether or not any outside influence was improperly brought to bear upon any juror, or whether or not the jury verdict was arrived at by chance. The affidavits of the jurors did not disclose any instance of misconduct which falls within the scope of the exceptions to the general rule stated in Rule 606(b), N.D. R.Ev. One juror's affidavit recited a statement made by the bailiff concerning the manner in which the Sheldon family was running into and out of the courtroom. The statement by the bailiff was not of such a nature as to warrant a reversal of the conviction on the ground of jury misconduct. See Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966). We conclude that the affidavits of the jurors did not fall within the province of Rule 606(b) which excludes evidence of jury deliberations. Thus, the district court properly refused to consider the affidavits submitted by the six jurors.
In no instance did the affidavits of the jurors disclose evidence of partiality and we are not called upon to review a contention by Sheldon that the jury was partial. State v. Olson, 274 N.W.2d 190 (N.D.1978). Sheldon does contend that the jury may have arrived at their verdict after a brief intermission. The jury deliberated for approximately ten hours and rendered the verdict of guilty one-half hour after a juror had returned from a brief intermission. The matter is properly within the discretion of the trial judge and, in the absence of evidence indicating prejudice or partiality, we cannot conclude that the district court abused its discretion.[15] The presumption is that the jury performed its duties in accordance with the law. State v. Graber, 77 N.D. 645, 44 N.W.2d 798 (1950).
VI.
The final two contentions raised by Sheldon concern whether or not the district court committed error when the court denied Sheldon's motions for acquittal and for a new trial and whether or not the evidence was sufficient to support the jury's verdict of guilty of the offense of reckless endangerment. Under Rule 29(a), N.D.R.Crim.P., the motion for a judgment of acquittal is properly granted only if the evidence is insufficient to sustain a conviction of the offense. A motion for a new trial on the ground of insufficiency of the evidence is a matter resting within the *616 sound discretion of the trial court. The trial court's decision will not be set aside unless an abuse of discretion is shown. State v. Holy Bull, 238 N.W.2d 52 (N.D. 1975). Where this court is faced with the issue of whether or not the evidence is sufficient to sustain the conviction, we will view the evidence in the light most favorable to the verdict. State v. Heasley, 196 N.W.2d 896 (N.D.1972); State v. Goeller, 264 N.W.2d 472 (N.D.1978), cert. den. 439 U.S. 953, 99 S. Ct. 350, 58 L. Ed. 2d 344.
After a careful review of the record, we conclude that the district court did not commit error in denying Sheldon's motions for acquittal and for a new trial. Abundant evidence exists upon which the jury could base its verdict. When we couple the fact that ample evidence exists by which the jury could base its verdict of guilty with the requirement that we view the evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient to sustain the conviction.
For reasons stated in this opinion, we affirm the judgment.
ERICKSTAD, C. J., PEDERSON and SAND, JJ., and McGUIRE, District Judge,[*] concur.
NOTES
[*] Application for Writ of Certiorari has been filed in United States Supreme Court.
[1] See 8A Moore's Federal PracticeCriminal Rules ¶ 31.03; 2 Wright, Federal Practice and Procedure: Criminal § 515. The Supreme Court of the United States has not explicitly held that the Due Process Clause of the Fifth Amendment guarantees to a defendant in a criminal case the right to have jury instructions submitted on lesser included offenses.
[2] 12.1-01-04. "General definitions.As used in this title, unless a different meaning plainly is required:
. . . . .
"15. `Included offense' means an offense: a. which is established by proof of the same or less than all the facts required to establish commission of the offense charged; b. which consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or c. which differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission...."
[3] 12.1-17-02. "Aggravated assault.A person is guilty of a class C felony if he:
1. Willfully causes serious bodily injury to another human being;
2. Knowingly causes bodily injury to another human being with a dangerous weapon or other weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury;
3. Causes bodily injury to another human being while attempting to inflict serious bodily injury on any human being; or
4. Fires a firearm or hurls a destructive device at another human being."
[4] 12.1-06-01. "Criminal attempt.1. A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A `substantial step' is any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.
2. A person who engages in conduct intending to aid another to commit a crime is guilty of criminal attempt if the conduct would establish his complicity under section 12.1-03-01 were the crime committed by the other person, even if the other is not guilty of committing or attempting the crime, for example, because he has a defense of justification or entrapment...."
12.1-16-01. "Murder. A person is guilty of murder, a class AA felony, if he:
1. Intentionally or knowingly causes the death of another human being;
2. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life; or...."
[5] The definition of included offenses is similar to Model Penal Code § 1.07(4) and § 703(3)(a)(b)(c) of the Proposed Federal Criminal Code. Section 12.1-01-04(15), N.D.C.C., is adopted from the Proposed Federal Criminal Code section. The provision permitting conviction of an included offense even though it is not explicitly charged is consistent with Rule 31(c), N.D.R.Crim.P. The Comment to § 703 points out that the definition of included offenses expands the usual meaning of the term (same or less than all the facts) to cover facilitation and solicitation, which may require proof of additional or different facts."
[6] See Minutes of the Committee on Judiciary "B", May 11 and May 12, 1972. The Committee noted that traditional assault would be punished by a charge dealing with attempts or with menacing. Thus, an unsuccessful attempt to seriously injure someone which fails is an attempted assault. Sections 12.1-17-01 and 12.1-17-02, N.D.C.C., define assault only in terms of a completed battery. For a further discussion of the history surrounding the development of the offense of criminal assault, see Perkins Crim.Law F.P. (1957), pp. 86-96. Reckless endangerment which involves reckless conduct generally is punishable as a misdemeanor. However, extreme recklessness is made felonious, regardless of whether injury is actually inflicted.
[7] State v. Ankney, 195 N.W.2d 547 (N.D.1972). See 8A Moore's Federal Practice ¶ 31.03[2]. For more information on the nature and problems encountered in lesser included offense instructions, see State v. Piper, 261 N.W.2d 650 (N.D.1977); Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). We note that the Appellate Court and the Supreme Court of Wisconsin have dealt with the issue we have not analyzed today. These courts have held that the crime of endangering safety by conduct regardless of life is a lesser included offense of the crimes of attempted first-degree murder and first-degree murder. See Walker v. State, 92 Wis. 2d 690, 286 N.W.2d 2 (1979); Holmes v. State, 63 Wis. 2d 389, 217 N.W.2d 657 (1974); Holesome v. State, 40 Wis. 2d 95, 161 N.W.2d 283 (1968).
[8] Section 31-11-03(3), N.D.C.C., states:
31-11-03. "Disputable presumptions.All presumptions other than those set forth in section 31-11-02 are satisfactory if uncontradicted. They are denominated disputable presumptions and may be contradicted by other evidence. The following are of that kind:
. . . . .
3. That a person intends the ordinary consequences of his voluntary act."
Rule 301(a), N.D.R.Ev., states:
"(a) Effect.... A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence."
[9] The district court's instruction stated:
"In the event you do not find the defendant guilty of any of the foregoing charges, then you may find the defendant guilty of reckless endangerment if the evidence supports such a charge. However, in order to find the defendant guilty of reckless endangerment, you must find from the evidence and beyond a reasonable doubt that at the time and place stated in the charge the defendant committed the crime of reckless endangerment."
[10] The district court's instruction also stated:
"A person is guilty of the offense of reckless endangerment if he recklessly creates a substantial risk of serious bodily injury or death to another. It is a more serious charge if the circumstances manifest an extreme indifference to the value of human life. There is risk within the meaning of this law if the potential for harm exists, whether or not a particular person's safety is actually jeopardized."
[11] See 8A Moore's Federal Practice-Criminal Rules ¶ 31.02[3].
[12] 1 TR 11, 99 Eng.Reprint 944 (1785).
[13] "RULE 606-COMPETENCY OF JUROR AS WITNESS
. . . . .
"(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the verdict of the jury was arrived at by chance. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes." N.D.R. Ev., Rule 606(b).
See also Weinstein's Evidence ¶ 606[04].
[14] See Miller v. United States, 403 F.2d 77 (2d Cir. 1968), modified on other grounds, 411 F.2d 825 (2d Cir. 1969).
[15] See Annot. 91 A.L.R. 2d 1238. Effect of verdict in criminal case of haste or shortness of time in which jury reached its verdict.
[*] McGUIRE, District Judge, sitting in place of VANDE WALLE, J., disqualified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2009401/ | 536 F. Supp. 236 (1982)
Anne M. BLEAKLEY, Plaintiff,
v.
JEKYLL ISLAND STATE PARK AUTHORITY, Robert S. Case, and Charles S. Skypek, Defendants.
Civ. A. No. CV 281-20.
United States District Court, S. D. Georgia, Brunswick Division.
March 12, 1982.
*237 Alvin Leaphart, Alan Smith, Brunswick, Ga., for plaintiff.
Gary R. Hurst, Asst. Atty. Gen., Atlanta, Ga., for defendants.
ORDER
ALAIMO, Chief Judge.
This suit charges a state instrumentality and certain of its employees with violations of federal age discrimination laws. The plaintiff alleges that she was dismissed from her job with the Jekyll Island State Park Authority solely due to her age and without regard to the quality of her performance. The plaintiff seeks redress under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States Constitution. The case is presently before the Court on the motion of all defendants to dismiss, Fed.R.Civ.P. 12(b)(6), and the motion of defendant Robert *238 S. Case for summary judgment. Fed.R. Civ.P. 56(b).
The motion to dismiss raises interesting questions of constitutional law: first, whether the 1974 amendments to the ADEA, making that Act applicable to state governments, are constitutional, and second, whether a dismissed state employee can bring an equal protection claim charging age discrimination without alleging a pattern of dismissals arbitrarily based on age?
In addition to these questions the defendants raise subsidiary questions about the type of relief afforded by the ADEA.[1] Specifically, they challenge the legality of the plaintiff's claim for compensatory and punitive damages, for attorney's fees for services performed at the state administrative level, and for the value of future pension benefits that did not vest at the time of her firing.[2] For the reasons discussed below, the Court DENIES the motion to dismiss in all its aspects, except that it limits the plaintiff's right to recover compensatory and punitive damages to her equal protection claim against the individual defendants. Furthermore, the Court GRANTS the defendant Case's motion for summary judgment and orders the suit dismissed as to that defendant.
DISCUSSION
I. The Constitutionality of the 1974 ADEA Amendments.
The Age Discrimination in Employment Act (ADEA) was passed in 1967 in order to promote the "employment of older persons based on their ability rather than age" and to prohibit "arbitrary age discrimination ...." 29 U.S.C. § 621(b). Originally applicable only to private employers, coverage of the Act was extended in 1974 to include state and local governments. 29 U.S.C. § 630(b). See Fair Labor Standards Amendments of 1974, Pub.L.No. 93-259, § 28, 88 Stat. 55 (1974). The defendants contend that the ADEA claim in the instant case must be dismissed because the 1974 amendments are unconstitutional under the holding of National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976).
In National League of Cities the Supreme Court struck down amendments to the Fair Labor Standards Act (FLSA) that extended the FLSA's minimum wage and maximum hour provisions to almost all state and municipal employees. The amendments at issue were passed pursuant to Congress' power under the commerce clause, and the Supreme Court found that the Tenth Amendment limited that power when its exercise would "directly displace the States' freedom to structure integral operations in areas of traditional governmental functions ...." Id at 852, 96 S. Ct. at 2474.
But courts interpreting National League of Cities subsequently held that the Tenth Amendment limitation only speaks to Congressional action under the commerce clause, and does not limit Congressional action against states qua states taken pursuant to other constitutional powers. See, e.g., Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S. Ct. 1123, 55 L. Ed. 2d 364 (1978) (Burger, C. J., concurring); Peel v. Florida Dep't of Transp., 600 F.2d 1070 (5th Cir. 1979); Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116 (6th Cir. 1978). In previous challenges to the constitutionality of the ADEA amendments at issue sub judice, most courts ruled that the amendments were enacted pursuant to section five of the Fourteenth Amendment, *239 and thus the Tenth Amendment limitation on Congressional action was inapplicable. See, e.g., Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977); Johnson v. Mayor & City Council of Baltimore, 515 F. Supp. 1287 (D.Md.1981); Usery v. Board of Educ. of Salt Lake City, 421 F. Supp. 718 (D.Utah 1976).
In 1981, however, the Supreme Court said in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981), that a court "should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment," id. at 15, 101 S. Ct. at 1538, 67 L.Ed.2d at 706, and went on to hold that the Developmentally Disabled Assistance & Bill of Rights Act of 1975 was passed pursuant to Congress' spending powers. Thus, the movants in the instant case argue that Pennhurst casts doubt on the continued validity of the Arritt line of cases. They contend that like the Act at issue in Pennhurst, the 1974 amendments to the ADEA did not state which specific power Congress was exercising, and that the 1974 amendments were passed as part of a bill amending the Fair Labor Standards Act, an Act that was enacted pursuant to the commerce clause. Therefore, they argue, Congress exercised its commerce power in passing the ADEA amendments and the analysis of National League of Cities is appropriate. As state parks and recreation areas are a component of "governmental service that the states and political subdivisions have traditionally afforded their citizens," the ADEA amendments must be struck down as violative of the Tenth Amendment.[3]
This Court finds it unnecessary to consider the constitutional source of the 1974 ADEA amendments because it considers the amendments constitutional even if enacted under the commerce clause. The Fifth Circuit has held that not every exercise of Congress' commerce power when directed to states qua states is invalid under the Tenth Amendment. Peel v. Florida Dep't of Transp., supra, 600 F.2d at 1084. Instead, the Circuit has ruled that the policies of federalism underlying the decision in National League of Cities requires a balancing test to determine the constitutionality of Congressional action under the commerce clause.[4]Id. at 1083. In the instant case the Court must balance the exercise of Congress' commerce power against the impact of the ADEA on Georgia's integral governmental functions. In so doing, the Court concludes that the Act does not displace state decision-making, and does not "substantially restructure traditional ways in which the local governments have arranged their affairs." National League of Cities v. Usery, supra, 426 U.S. at 849, 96 S. Ct. at 2473.
In National League of Cities the Supreme Court was concerned with the financial burdens placed on the states by application of minimum wage and maximum hours rules. The Court felt that these strains might result in increased taxes, or worker lay-offs, or "forced relinquishment of important governmental activities." Id. at 847, 96 S. Ct. at 2472. See Peel v. Florida Dep't of Transp., supra, 600 F.2d at 1083. But the considerations that moved the National League of Cities Court do not arise from an application of the ADEA. Under the ADEA, states remain free to set all substantive terms of employment: it merely restricts them from classifying on the basis of age when age is an arbitrary consideration in the workplace. A state may still classify on the basis of age when age is a "bona fide occupational qualification," 29 *240 U.S.C. § 623(f)(1), and may classify employees according to reasonable factors other than age. 29 U.S.C. § 623(f)(3). See U.S. E.E.O.C. v. County of Calumet, 519 F. Supp. 195 (E.D.Wis.1981). Importantly, Georgia itself protects individuals from age discrimination in public employment, Ga.Code Ann. § 89-1701, et seq., thereby evidencing that age discrimination is contrary to state policy and serves no sovereign state function. U.S.E.E.O.C. v. County of Calumet, supra, 519 F.Supp. at 202. Therefore this Court cannot say that Congress' extension of the ADEA to state and local governments is an unconstitutional exercise of its commerce power as prohibited by the Tenth Amendment.
In so holding, this Court is acting consistent with other Fifth Circuit decisions in collateral areas. In Pearce v. Wichita County Hospital Board, 590 F.2d 128 (5th Cir. 1979), the Fifth Circuit upheld the extension of the Equal Pay Act to the states as a constitutionally permissive exercise of Congress' commerce power. Accord, Marshall v. Dallas Independent School District, 605 F.2d 191, 193 n.3 (5th Cir. 1979); Marshall v. Georgia Southwestern College, 489 F. Supp. 1322, 1329 (M.D.Ga.1980). Like the ADEA, the Equal Pay Act looks to the provisions of the FLSA for enforcement, see 29 U.S.C. § 206(d)(3) (Equal Pay Act); 29 U.S.C. § 626(b) (ADEA), and the amendments to the Equal Pay Act applying it to the states were included in the same bill as the ADEA amendments. See Fair Labor Standards Amendments of 1974, supra. Moreover, the Equal Pay Act probably exerts a greater federal force on state employment decisions than the ADEA. That Act requires that men and women receive equal pay for equal work, 29 U.S.C. § 206(d), and possibly forces noncomplying states to re-evaluate employment costs and displace state monies from other areas. Nevertheless the Fifth Circuit has ruled that the potential interference does not rise to the level of displacing a state's freedom to structure its employer-employee relationships. Pearce v. Wichita County Hospital Board, supra, 590 F.2d at 132. Such reasoning applies a fortiori in the case of the ADEA amendments, and hence this Court DENIES the defendants' motion to dismiss the ADEA claim.
II. The Equal Protection Claim.
The defendants' next objection concerns the legality of the plaintiff's equal protection claim. The plaintiff alleges that the two individual defendants, Robert S. Case and Charles S. Skypek, violated her constitutional right to equal protection under the law, and are liable as such under 42 U.S.C. § 1983.[5] The defendants argue, however, that an equal protection claim can only be brought if a governmental body makes a legislative classification, or renders administrative decisions reflecting a pattern of class-based animus. Since the plaintiff's termination was an allegedly isolated employment decision,[6] the "plaintiff has not sufficiently asserted any facts or law that establishes a class of persons affected by the defendants' actions," and thus, contend the defendants, her constitutional claim must be dismissed.[7]
The Court does not adhere to this view of the equal protection clause. "An equal protection claim arises when an individual contends that he is receiving different treatment from that received by other individuals similarly situated." Kuhar v. Greensburg-Salem School District, 616 F.2d 676, 677 n.1 (3d Cir. 1980). The essence of *241 the claim is that certain action is taken against the plaintiff because of his membership in a particular class, and that given the circumstances of the case or the nature of the class, such action is arbitrary and illegal. See Adickes v. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605, 26 L. Ed. 2d 142 (1970). The clause is not necessarily violated only upon a showing that similar action was taken against the entire class. Woerner v. Brzeczek, 519 F. Supp. 517, 519 (N.D. Ill.1981) ("an Equal Protection Clause claim need not involve a policy toward an entire class of persons."). The Supreme Court has explicitly held that "[a] single invidiously discriminatory governmental act ... [is] not necessarily ... immunized by the absence of such discrimination in the making of other comparable decisions." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 n.14, 97 S. Ct. 555, 563 n.14, 50 L. Ed. 2d 404 (1977). The key is that the single act of termination be shown to rise to the level of invidious discrimination: a pattern of age discrimination may create an inference that the termination at issue was motivated by a discriminatory intent, but it is not a necessary predicate in making that showing.[8] As such, the Court DENIES the defendants' motion to dismiss the constitutional claim.
III. Recovery of Compensatory and Punitive Damages Under the ADEA and 42 U.S.C. § 1983.
Novel and interesting nonconstitutional issues are also raised by the motion to dismiss. The first and most important of these involves the plaintiff's claim for compensatory and punitive damages. The state correctly asserts that the ADEA does not provide for compensatory or punitive relief. Murphy v. American Motors Sales Corp., 570 F.2d 1226, 1227 (5th Cir. 1978) (per curiam); Dean v. American Security Insurance Co., 559 F.2d 1036, 1038 (5th Cir. 1977), cert. denied, 434 U.S. 1066, 98 S. Ct. 1243, 55 L. Ed. 2d 767 (1978). The plaintiff answers, however, that she can be awarded compensatory and punitive damages if she is successful on her section 1983 claim. Section 1983 does allow the payment of compensatory relief for actual injuries caused by a deprivation of constitutional rights. Carey v. Piphus, 435 U.S. 247, 254-257, 98 S. Ct. 1042, 1047-48, 55 L. Ed. 2d 252 (1978). Moreover, the Supreme Court has held that a trial court has the discretion to award punitive damages under section 1983 in order to punish malicious violations of constitutional rights. Carlson v. Green, 446 U.S. 14, 22, 100 S. Ct. 1468, 1474, 64 L. Ed. 2d 15 (1980); Carey v. Piphus, supra, 435 U.S. at 257 n.11, 98 S. Ct. at 1048 n.11. Thus, the plaintiff's prayer for compensatory and punitive relief is properly brought as part of her section 1983 claim for a violation of the equal protection clause.
This does not end the issue, however. There is an assertion in the plaintiff's reply brief that she is bringing her section 1983 action not only to remedy a violation of her constitutional rights, but also to remedy a violation of her rights under the ADEA. There is the further assertion that as such, she can also recover the 1983 remedies of compensatory and punitive damages if she proves a substantive violation of the ADEA, which would be less arduous to prove than the alleged constitutional violation. The plaintiff cites as support for the assertion *242 Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980), in which the Supreme Court ruled that section 1983 provides a remedy for violations of substantive federal law as well as for violations of constitutional rights.
Pretermitting the question of whether compensatory and punitive relief can be granted under section 1983 when the statute is invoked to remedy only substantive statutory violations, the Court holds that a section 1983 action cannot be brought for violations of the ADEA. In the recent case of Pennhurst State School v. Halderman, supra, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981) the Supreme Court intimated in strong dicta, that section 1983 would not lie as a remedy for substantive statutory violations if the substantive statute provided its own exclusive remedy.[9]Pennhurst State School v. Halderman, supra, 451 U.S. at 27, 101 S. Ct. at 1545, 67 L.Ed.2d at 714 (majority opinion), 451 U.S. at 51, 101 S.Ct. at 1557, 67 L. Ed. 2d at 728 (dissenting opinion). This Court thinks that the remedial provisions of the ADEA are exclusive, and the rights created by the ADEA may not be asserted within the remedial framework of section 1983.
The ADEA provides a comprehensive plan to prohibit discrimination in employment on the basis of age. Yet the thrust of the plan is to encourage compliance through a process of conciliation and mediation. Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 841 (3d Cir. 1977), cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 770 (1978); see also Dean v. American Security Insurance Co., supra, 559 F.2d at 1038. A condition precedent to the bringing of a private action is that the Equal Employment Opportunity Commission (EEOC) must be given sixty days notice.[10] 29 U.S.C. § 626(d). This is to allow the EEOC to mediate the grievance "by informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(b). Moreover, the right to bring a private action terminates upon the filing of an action by the EEOC. 29 U.S.C. § 626(c). Finally, notification to the EEOC must be made within 180 days after the alleged unlawful practices occurred, unless the party is also pursuing state relief. 29 U.S.C. § 626(d)(1). If a violation of ADEA substantive rights could be asserted through a section 1983 action, the plaintiff could avoid these specific provisions of the law. He could have direct access to the federal court, and also take advantage of generally broader statute of limitation guidelines.[11] The express time limitations could be altered, the administrative process bypassed, and the goal of compliance through mediation lost. The purposes and structure of the ADEA are inconsistent with the notion that the remedies it affords could be supplanted or substituted with other judicial relief. Accordingly, deprivation of rights under the ADEA cannot be the basis for a cause of action under section 1983. See Great American Federal S. & L. Ass'n v. Novotny, 442 U.S. 366, 370-378, 99 S. Ct. 2345, 2347-52, 60 L. Ed. 2d 957 (1979) (deprivations of Title VII rights cannot be the basis for a section 1985(3) claim).
IV. The Plaintiff's claim for Attorney's Fees for Services Performed at the State Administrative Level.
The second novel question of federal law raised by the motion is whether the ADEA allows recovery of attorney's fees for services performed at the state administrative *243 level. The plaintiff seeks to recover $500.00 for attorney's expenses incurred in proceedings before the Georgia Office of Fair Employment Practices. Prior to filing her federal complaint, the plaintiff sought relief before that agency. A hearing was held on the charge of discrimination, and a Special Master concluded that the defendants' actions violated Georgia law. The instant suit was brought to supplement the relief provided at the state proceedings.[12]
The state admits that this question is one of first impression in this Circuit, but argues that the Court should follow the decision in Kennedy v. Whitehurst, 509 F. Supp. 226 (D.D.C.1981), where the court denied the recovery of similar attorney's fees to the ADEA complainants.
The Court declines to follow the suggested path. In New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S. Ct. 2024, 64 L. Ed. 2d 723 (1980) the Supreme Court ruled that Title VII of the Civil Rights Act allows recovery of attorney's fees for legal services performed in state administrative proceedings. The Whitehurst court, however, found key distinctions between Title VII and the ADEA in the very areas the Gaslight Club Court had focused on in arriving at its result. Therefore, a similar result was deemed inappropriate. But this Court does not consider the two statutes disparate in the area most germane to resolving the question, and thinks the Gaslight Club holding applicable to persons seeking ADEA relief.
The first area the Gaslight Club Court examined in reaching its result was the language of the statute. Under the attorney's fees provision of Title VII, § 706(k), a trial court may allow reasonable attorney's fees "in any action or proceeding under this subchapter." 42 U.S.C. § 2000e-5(k) (emphasis added). Justice Blackmun, writing for the Gaslight Club Court, reasoned that the use of the disjunctive phrase "action or proceeding" indicated "an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings." New York Gaslight Club, Inc. v. Carey, supra, 447 U.S. at 61, 100 S. Ct. at 2029. The parallel provision in the Fair Labor Standards Act, 29 U.S.C. § 216, refers only to "action[s]." The Whitehurst court thought that the more spare language "suggest[ed a] restrictive approach ...." Kennedy v. Whitehurst, supra, 509 F.Supp. at 230.
The more important focus for the Gaslight Club Court, and thus Judge Gasch in Whitehurst, was the federal-state enforcement scheme contemplated by Title VII. Justice Blackmun found that it was Congress' intent to have Title VII remedies complement state and local legislation to form an integrated governmental policy to counter discrimination. New York Gaslight Club, Inc. v. Carey, supra, 447 U.S. at 63, 100 S. Ct. at 2030. As a result Title VII requires that:
"where the unlawful employment practice is alleged to have occurred in a State or locality which has a law prohibiting the practice ... `no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.'"
Id. at 64, 100 S. Ct. at 2031, quoting 42 U.S.C. § 2000e-5(c). Justice Blackmun reasoned that denying recovery of fees in state proceedings would encourage complainants "to wait out the 60-day deferral period," and focus only on obtaining federal relief. "Only authorization of fee awards [for state proceedings]," he concluded, "ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme." Id. at 65, 100 S. Ct. at 2031.
The Whitehurst court found a distinction in the procedure of the ADEA. It held that an employee seeking ADEA redress need not "exhaust any administrative remedies prior to instituting a civil action in federal court." Kennedy v. Whitehurst, supra, 509 F.Supp. at 230. Judge Gasch reasoned that "the only necessary administrative step in *244 the bringing of an ADEA action is the statutory requirement that the would-be plaintiff give notice to the appropriate federal official of the intention to sue." Id. The Whitehurst court thus concluded that "[i]t appears ... Congress did not contemplate such an award [of attorney's fees] because, in ADEA actions, unlike Title VII actions, administrative proceedings are not a pervasive and integral part of the overall scheme of enforcement." Id. at 231.
The Whitehurst court, however, is incorrect concerning the remedial procedure for ADEA plaintiffs. Section 14(b) of the ADEA is almost in haec verba with section 706(b) of Title VII, 42 U.S.C. § 2000e-5(c). It provides that:
"... In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 ... before the expiration of sixty days after such proceedings have been commenced under the State law, unless such proceedings have been earlier terminated."
29 U.S.C. § 633(b). Moreover, in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979) the Supreme Court ruled that section 14(b) requires an aggrieved person to resort to appropriate state remedies before instituting a federal ADEA action. Id. at 758, 99 S. Ct. at 2072. The Court in Oscar Mayer further held that the ADEA, paralleling Title VII, "is intended to give state agencies a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination." Id. at 755, 99 S. Ct. at 2071 (emphasis added). This is precisely the integrated governmental purpose that moved the Gaslight Club Court to allow attorney's fees for state proceedings in Title VII actions. Therefore, to deny an award of attorney's fees for state proceedings would frustrate the federal policy of "[incorporating] state procedures as a meaningful part of [the ADEA] enforcement scheme." New York Gaslight Club, Inc. v. Carey, supra, 447 U.S. at 65, 100 S. Ct. at 2031.
The State of Georgia is one such state that provides remedies for persons injured by age discrimination. Georgia Fair Employment Practices Act of 1978, Ga.Code Ann. § 89-1701 et seq. In the course of seeking this relief a complainant may have to participate in an adversary hearing and apply for judicial review of administrative decisions. Ga.Code Ann. §§ 89-1715 (adversary hearing); 89-1717 (judicial review). Such functions necessitate the assistance of a lawyer. Indeed, the plaintiff in this case, realizing the requirement of pursuing available state relief before bringing an ADEA claim, successfully sought such relief. That she now seeks additional relief from a federal court is not germane to her claim for reimbursement of expended legal fees. The Court finds the pertinent goals and requirements of the ADEA and Title VII apposite, and concludes, applying Gaslight Club, that the ADEA authorizes an award of attorney's fees for legal services at the state administrative level. The defendants' motion to dismiss this portion of the complaint is DENIED.
V. The Plaintiff's Claim for an Award of Unvested Pension Benefits.
The final issue raised by the motion to dismiss concerns the legality of the plaintiff's demand for $17,000.00, representing the projected value of lost future pension benefits. The state challenges the plaintiff's entitlement under the ADEA to such an award particularly because, even if the plaintiff had remained in the state's employment, her rights to pension benefits would not have vested until 1984. Support for the challenge is found in Monroe v. Penn-Dixie Cement Corp., 335 F. Supp. 231 (N.D.Ga.1971), which held that a successful ADEA plaintiff cannot recover money damages beyond the compensation he would have been entitled to had he remained employed by the defendant until the trial date. Id. at 235.
*245 The question whether an award of pension benefits is authorized under the ADEA remains undecided in this Circuit. Monroe, however, provides an apt starting point for analysis, because it is one of three cases which treat this question. See Loeb v. Textron, Inc., 600 F.2d 1003, 1021 (1st Cir. 1979); Hoffman v. Nissan Motor Corp. in U. S. A., 511 F. Supp. 352, 357 (D.N.H.1981).
The Monroe court examined the scope of monetary relief afforded by the ADEA. The court ruled that the measure of ADEA damages constitutes the difference between the compensation a plaintiff would have received between the date of termination and trial had he remained an employee of the defendant and all other compensation.[13] Moreover, the court viewed compensation as comprising all specific monetary benefits, including "pension benefits which would have vested prior to trial." Monroe v. Penn-Dixie Cement, Corp., supra, 335 F.Supp. at 235. See Loeb v. Textron, Inc., supra, 600 F.2d at 1021.
But the Monroe court also ruled that prospective damages for lost future compensation would not be appropriate, because the plaintiff was protected against future damage by the injunctive remedy of reinstatement.[14] If the plaintiff did not request reinstatement, he waived "any unliquidated future rights he might have against his former employer." Monroe v. Penn-Dixie Cement, Corp., supra, 335 F.Supp. at 235.
Presumably, the defendants' argument here is that valuing pension benefits that would not vest prior to trial constitutes valuing lost future compensation, and since the plaintiff does not seek reinstatement, she cannot properly claim the present monetary value of that future compensation. However, in a very real sense, the value of an employee's future pension benefits, vested or not, represents not the value of future compensation, but the value of compensation, together with interest and earnings, for services performed in the past. During her employment, part of the plaintiff's weekly paycheck included monies paid to a pension fund representing present compensation for her work of that week. If the plaintiff would have remained employed by the defendant, that set-aside process would have continued.
The Court thinks that a successful ADEA plaintiff is entitled to the present discounted value of a pension award based on employment from when the plaintiff was first hired until the date of the trial. See Loeb v. Textron, Inc., supra, 600 F.2d at 1021 (allowing pension award in instances where plaintiff's term of employment fails to meet employer's vesting requirement). Such an award would serve the broad purpose of making the victim of age discrimination "whole," see Boddorff v. Publicker Ind. Inc., 488 F. Supp. 1107, 1113 (E.D.Pa.1980), yet would not violate Monroe's holding that damages are not to be projected beyond the trial date, because the award would represent compensation earned prior to the trial date, although normally received and enjoyed in the future. To disallow recovery would permit an employer "to stand on [vestiture] requirements that [a] plaintiff cannot meet because of the employer's own wrongful acts." Loeb v. Textron, Inc., supra, 600 F.2d at 1021. The Court therefore DENIES this aspect of the defendants' motion to dismiss and holds that if successful on her ADEA claim the plaintiff shall be entitled to be treated as if her pension benefits vested at the date of trial. See Hoffman v. Nissan Motor Corp. in U. S. A., supra, 511 F.Supp. at 357.
VI. The Motion for Summary Judgment.
Individual defendant Robert S. Case, in addition to joining the motion to dismiss, alternatively moves for summary judgment. Case was the Executive Director of the Jekyll Island State Park Authority during the time of the alleged unlawful *246 action. The plaintiff claims that he "either approved of or ratified" the decision to terminate made by Charles S. Skypek, Controller of the Jekyll Island State Park Authority and the plaintiff's immediate supervisor.[15] Case, however, contends that he was not involved in the decision. In support of his contention he has submitted an affidavit from Skypek wherein Skypek testifies that he "had the power to fire ... employees under [his] supervision," and that "the final decision as to the termination of [the plaintiff's] employment" was his.[16] In addition, the movant has submitted a copy of the plaintiff's sworn complaint before the Georgia Office of Fair Employment Practices, which only alleges discriminatory acts committed by Skypek and does not mention the movant. Finally, Case points to portions of the plaintiff's deposition where the plaintiff says that she merely assumes that her termination could not have been ordered without Case's prior approval.[17] The plaintiff has introduced no evidence contradicting the factual support offered by the movant, instead she merely reiterates her view that the action of Skypek "was approved and adopted by Case in his capacity as Executive Director."[18]
The Court agrees with the movant's contention and GRANTS his motion for summary judgment. A government official's liability under § 1983 may not be based on respondeat superior or vicarious liability principles. Thompson v. Bass, 616 F.2d 1259, 1268 (5th Cir.), cert. denied, 449 U.S. 983, 101 S. Ct. 399, 66 L. Ed. 2d 245 (1980); Adams v. Governor's Committee on Post-Secondary Education, No. C80-624A (N.D.Ga. Dec. 16, 1980). See also Wilkerson v. Siegfried Insurance Agency, Inc., 621 F.2d 1042, 1045 (10th Cir. 1980). Instead, the liability of a supervisory official depends on whether he has "commanded the result, or adopted a policy, a natural consequence of which is the denial of a constitutional right." Smith v. Ambrogio, 456 F. Supp. 1130, 1135 (D.Conn.1978). In this case, the uncontroverted sworn testimony of Skypek and Bleakley shows that Skypek had the authority and did act independently of Case in terminating the plaintiff. Such testimony requires the plaintiff to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). This rule applies even in employment discrimination cases. Sagers v. Yellow Freight System Inc., 529 F.2d 721, 728 n.13 (5th Cir. 1976) ("the mere fact that the [party opposing summary judgment] vigorously disputed the legal conclusions to be drawn from the facts presented by the [movant] was no bar to the grant of summary judgment."); Womack v. Shell Chemical Co., 514 F. Supp. 1062, 1066 (S.D.Ala. 1981). Yet Bleakley's only response was to repeat the conclusory allegations outlined in her complaint. No evidence was presented to tie Case to the discharge of the plaintiff. Accordingly, his motion for summary judgment is GRANTED.
VII. Conclusion
In conclusion, the Court DENIES the defendants' motion to dismiss and allows the plaintiff to proceed with her claim that the defendants, in discharging her from her employment with the state, violated both the ADEA and the equal protection clause of the Fourteenth Amendment. Moreover, the Court DENIES the defendants' motion to dismiss the plaintiff's claim for compensatory and punitive damages resulting from the alleged constitutional violation. It also rejects dismissal of the portion of the plaintiff's claim seeking attorney's fees for services performed at the state administrative level and for the value of lost pension benefits. The Court, however, does DISMISS the plaintiff's request for compensatory and *247 punitive relief brought pursuant to her ADEA claim and RESTRICTS the scope of her claim for lost pension benefits to the present discounted value of those benefits computed from the start of her employment with the state to the date of trial. Finally, the Court GRANTS the motion of defendant Robert S. Case for summary judgment.
NOTES
[1] The Court reads the plaintiff's complaint as bringing the ADEA claim against the State Park Authority and the individual defendants in their official capacities. The Court reads the constitutional claim as against only the individual defendants. See E. E. O. C. v. Wyoming, 514 F. Supp. 595, 596 (D.Wyo.1981), prob. juris. noted, ___ U.S. ___, 102 S. Ct. 996, 71 L. Ed. 2d 291 (1982).
[2] These questions regarding the type of relief afforded by the ADEA were raised prior to the defendants' motion to dismiss the ADEA claim. A disposition favorable to the movants on this issue would, of course, render these subsidiary questions moot. But in light of the Court's decision to allow the ADEA claim, these subsidiary issues remain important to the disposition of this case and will be considered in this Order.
[3] Brief in Support of Defendants' Amendment to Defendants' Partial Motion to Dismiss, p. 6, (December 31, 1981), quoting E. E. O. C. v. Wyoming, 514 F. Supp. 595, 600 (D.Wyo.1981), prob. juris. noted, ___ U.S. ___, 102 S. Ct. 996, 71 L. Ed. 2d 291 (1982).
[4] In this respect, the Fifth Circuit was drawing from Justice Blackmun's all important concurring opinion in National League of Cities. That decision was based on a 5-4 majority, and Justice Blackmun's deciding vote was premised on his understanding that the Court had adopted a balancing approach to determine the validity of federal interference with state functions. See Peel v. Florida Dep't. Transp., supra, 600 F.2d at 1084 n.16.
[5] Plaintiffs Complaint, ¶ 21 (January 29, 1981). Section 1983 does not create any substantive rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617, 618, 99 S. Ct. 1905, 1915, 1916, 60 L. Ed. 2d 508 (1979). Rather, it provides a remedy for violations of constitutional and federal substantive law committed under color of state law. See Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S. Ct. 2502, 2503-06, 65 L. Ed. 2d 555 (1981).
[6] The plaintiff does claim that she was one of two employees at the Jekyll Island State Park Authority to be fired because of age, but this in itself would not evidence a pattern of age discrimination.
[7] Defendants' Reply Brief to Plaintiff's Brief in Opposition of the Motion for Partial Dismissal, p. 3 (October 5, 1981).
[8] This is not to say that to prove an act of discrimination was invidious and unconstitutional is similar to proving invidious discrimination on the grounds of race or national origin. Unlike classifications based on those latter characteristics, age-based classifications are not inherently suspect, and state action on such a basis does not violate the equal protection clause unless it is "not rationally related to furthering a legitimate state interest." Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 2566, 49 L. Ed. 2d 520 (1976) (per curiam). But while the Court recognizes that the plaintiff faces formidable obstacles in presenting an equal protection clause claim, it does not think that the rational basis standard automatically shields the defendants from equal protection attack. If the plaintiff can prove that age was a motivating factor in her dismissal, and this factor was "so unrelated to the achievement of any combination of legitimate purposes" that it must be considered irrational, the plaintiff will have succeeded on her claim. See Vance v. Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 942, 59 L. Ed. 2d 171 (1979).
[9] In so doing, the Court was adopting the view expressed by Justice Powell in Maine v. Thiboutot, supra, 448 U.S. at 23 n.11, 100 S. Ct. at 2507 n.11 (Powell, J., dissenting).
[10] Originally, all administrative and enforcement functions under the ADEA were given to the Secretary of Labor, but such functions were transferred to the EEOC by section 2 of 1978 Reorg. Plan No. 1, 43 Fed.Reg. 19807, 92 Stat. 3781.
[11] Limitations on section 1983 actions are determined by looking to applicable statutes if the suit had been brought in state court. Pegues v. Morehouse Parish School Board, 632 F.2d 1279, 1280, 1281 (5th Cir. 1980), cert. denied, 451 U.S. 987, 101 S. Ct. 2322, 68 L. Ed. 2d 844 (1981).
[12] Plaintiff's Complaint, ¶ 15 (January 23, 1981).
[13] This interpretation is consistent with later holdings. See Brennan v. Ace Hardware Corp., 495 F.2d 368, 373 (8th Cir. 1974).
[14] Section 7 of the ADEA, 29 U.S.C. § 626(b), allows a court to grant appropriate equitable relief including "judgments compelling employment, reinstatement, or promotion ...."
[15] Plaintiff's Complaint, ¶ 14 (January 29, 1981).
[16] Affidavit of Charles S. Skypek, ¶¶ 4, 5 (October 5, 1981).
[17] Memorandum in Support of Robert S. Case's Partial Motion for Summary Judgment, p. 3 (September 1, 1981), quoting Deposition of Anne M. Bleakley, pp. 54, 55.
[18] Plaintiff's Response to Statement of Uncontroverted Facts, ¶¶ 4, 7 (September 21, 1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2466196/ | 10 F. Supp. 2d 521 (1998)
UNITED STATES of America
v.
John EISENHARDT.
Crim. No. S 95-0468. Civil No. S 98-2521.
United States District Court, D. Maryland.
July 30, 1998.
Opinion Denying Reconsideration August 3, 1998.
Lynne A. Battaglia, U.S. Attorney for the District of Maryland, Baltimore, MD, Joseph L. Evans, Assistant U.S. Attorney, for U.S.
Andrew Radding, Robert D. Schulte, Adelberg, Rudow, Dorf, Hendler & Sameth, LLC, Baltimore, MD, for John Eisenhardt.
MEMORANDUM OPINION
SMALKIN, District Judge.
The defendant in this criminal case has filed, by counsel, a motion for postconviction relief pursuant to 28 U.S.C. section 2255. In that the Court's review of the motion in light of the files and records of the Court convince it beyond any question that the movant is not entitled to any relief in this Court, an order will be entered separately, summarily dismissing the motion, pursuant to Rule 4(b), Rules Governing Section 2255 Proceedings.
The defendant's first argument is that his guilty plea to the offense of conspiracy was tainted and induced by the fact that various potential witnesses against him were co-operators in an ongoing child pornography investigation in the District of New Jersey, who had been given or promised favorable treatment by federal prosecutors in exchange for their testimony. Citing the recent panel decision of the Tenth Circuit in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), rehearing en banc granted and panel opinion vacated, 144 F.3d 1343 (10th Cir. July 10, 1998), the defendant argues that his prosecution was tainted by violation of 18 U.S.C. section 201, and that all evidence flowing from co-operators was poisoned by such violation, on account of prosecutorial violation of 18 U.S.C. section 201.
The Court, first, notes that the panel opinion in Singleton has been vacated. Thus, it is no longer of any authoritative weight at all. Furthermore, it never was, in my judgment, persuasive authority. Before it was vacated, the undersigned read that opinion, and he concluded that it was amazingly unsound, not to mention nonsensical, especially in its creation ex nihilo of an exclusionary rule barring testimony from virtually every cooperating federal witness. The chances of either or both the Fourth Circuit and the Supreme Court reaching the same conclusion as the Singleton panel are, in this Court's judgment, about the same as discovering that the *522 entire roster of the Baltimore Orioles consists of cleverly disguised leprechauns.
The defendant's second point is that he was denied effective assistance of counsel in the pretrial stage of the proceedings. He complains that the Maryland attorney who represented him pre-charging in New Jersey (the case having been transferred here for guilty plea to a criminal information pursuant to Fed.R.Crim.P. 20) was not competent in the early stages of the investigation, when he allegedly gave Mr. Eisenhardt bad advice about cooperating in the investigation.
There is no Sixth Amendment concern raised by this contention. The Sixth Amendment right to counsel does not attach until the initiation of formal criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). Here, there is no allegation that formal proceedings had been initiated when the allegedly bad advice was given. In fact, the present motion recites that the defendant discharged the attorney in question and retained new counsel "to represent him at trial, in lieu of which a plea agreement, by necessity and good counsel, was reached with the Government." (Motion at p. 8)
Thus, in that there is no indication that there was any violation of the Sixth Amendment, and in that defendant does not claim the necessary Sixth Amendment predicates of incompetent advice and prejudice in connection with the entry of his plea of guilty to warrant relief under settled law, see Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), his second contention is meritless.
Finally, the defendant claims that the Sixth Amendment was violated when his retained attorney failed to advise him to pursue certiorari relief from the Supreme Court after the Fourth Circuit affirmed on direct appeal. The Supreme Court has flatly held that no ineffective assistance claim under the Sixth Amendment is made out by a contention that counsel, retained or appointed, failed to pursue discretionary relief in the Supreme Court. Wainwright v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982); Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974). In that the Supreme Court's review of federal criminal cases by certiorari is a discretionary review, see Miller v. Keeney, 882 F.2d 1428, 1432 n. 6 (9th Cir.1989), there is simply no right to have the advice of counsel in pursuing it. Id. (This does not, of course, take into account the duties of counsel appointed for indigents pursuant to the Criminal Justice Act, who do have a duty under that Act and its implementing plan with regard to certiorari review, see Proffitt v. United States, 549 F.2d 910 (4th Cir.1976), cert. denied, 429 U.S. 1076, 97 S. Ct. 818, 50 L. Ed. 2d 795 (1977), but no such duty existed here on the part of retained counsel.)
For the stated reasons, an Order will be entered separately that summarily dismisses the present motion.
MEMORANDUM OPINION
In a Memorandum Opinion and Order thereon entered July 30, 1998, this Court summarily dismissed the defendant's Section 2255 motion pursuant to Rule 4(b), Rules Governing Section 2255 Proceedings.
The defendant has now filed an "Amended Motion for Reconsideration," directed only at so much of the Court's disposition of his original motion as held that there was no viable claim of ineffective assistance of counsel in his counsel's failure to advise him of his right to petition to the United States Supreme Court for certiorari.
The defendant points out that, although counsel who represented defendant in this Court was retained, counsel was appointed to represent the defendant by the Fourth Circuit on appeal, a fact hitherto unknown to this Court. (This Court is not advised by the Fourth Circuit of its actions in appointing counsel to pursue appeals.)
Citing Proffitt v. United States, 549 F.2d 910, 912-13 (4th Cir.1976), cert. denied, 429 U.S. 1076, 97 S. Ct. 818, 50 L. Ed. 2d 795 (1977), the defendant claims that he is entitled to further proceedings in this Court to determine whether counsel's failure to advise him regarding certiorari is ineffective assistance of counsel, not under the Sixth Amendment, but under the Criminal Justice Act *523 (CJA) of 1964, and the Fourth Circuit's Plan implementing the same.
Proffitt held that the district court considering a Section 2255 motion erred in holding that there was no duty on the part of counsel to inform the defendant of his right to seek certiorari review and to prepare and file such a petition, on request. The Fourth Circuit, in Proffitt, remanded for a determination of whether the defendant was "denied effective assistance of counsel." 549 F.2d at 913.
This Court must seriously question the continuing validity of so much of Proffitt, supra, as requires appointed counsel in all cases to inform the indigent defendant of his right to petition for certiorari and to file such a petition, if requested. In Austin v. United States, 513 U.S. 5, 115 S. Ct. 380, 130 L. Ed. 2d 219 (1994), the Supreme Court criticized the Fourth Circuit CJA Plan, upon which Proffitt was based, insofar as it requires counsel to file, on defendant's request, a petition for writ of certiorari in all cases. The Supreme Court based its holding in Austin on a conflict between its own Rules (prohibiting legally frivolous filings) and the Fourth Circuit's CJA Plan (requiring the filing of even frivolous certiorari petitions). Apparently, the Fourth Circuit Plan has not been changed in the wake of Austin, as Proffitt continues to be followed. See, e.g., United States v. Thomas, 46 F.3d 1129, 1995 WL 10223 (4th Cir.1995).
This Court need not, however, decide whether the holding in Proffitt is still good law in light of Austin. Even if it were still good law, nothing in Proffitt holds that failure to seek or advise regarding collateral review is presumptively prejudicial, as distinguished from, for example, failure to prosecute an appeal as of right. Cf., Allen v. United States, 938 F.2d 664 (6th Cir.1991). If anything, Austin stands for the proposition that discretionary review is not a matter of right and that very different considerations are involved from those connected with an appeal as of right. Furthermore, the law regarding the prejudice prong of the ineffective assistance of counsel inquiry had not even emerged when Proffitt was decided, having been established years later in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Thus, this Court concludes that, to have relief in this Court, the defendant must show prejudice from counsel's failure to advise him of the possibility of certiorari review. Strickland v. Washington, supra. In this case, as appears conclusively from the record, see Rule 4(b), Rules Governing Section 2255 Proceedings, there was manifestly no prejudice to the defendant.
In its per curiam opinion disposing of Mr. Eisenhardt's direct appeal without oral argument, the Fourth Circuit noted that the only issue presented for its review was the question of whether this Court had abused its discretion in refusing a downward departure in Mr. Eisenhardt's sentence. Even if not legally frivolous within the opprobrium of Austin, a certiorari petition seeking review of the Fourth Circuit's decision would undoubtedly have been doomed to failure. Given the nature of the underlying question and the Fourth Circuit's disposition of it, the certiorari petition would have been dead on arrival at the Supreme Court, a conclusion with which no reasonable lawyer could disagree. Thus, there is no possibility of any prejudice to Mr. Eisenhardt under these circumstances.
Accordingly, an Order will be entered separately, denying the defendant's amended motion for reconsideration. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2379021/ | 866 S.W.2d 234 (1993)
Ex parte William Prince DAVIS.
No. 71717.
Court of Criminal Appeals of Texas, En Banc.
December 1, 1993.
*236 Will Gray, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., and Andrea Lopes Moore, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
PER CURIAM.
This is a post-conviction application for writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P. This Court affirmed applicant's conviction for capital murder on direct appeal. Davis v. State, 597 S.W.2d 358 (Tex.Cr.App.1980). Applicant contends that counsel at his 1978 trial was deficient in a number of respects which, separately and in the aggregate, violated his Sixth Amendment right to effective assistance of counsel. He also contends that certain assurances the prosecutor obtained from prospective jurors, as well as argument made at the punishment phase of trial, combined to deprive him of his Eighth Amendment right to a jury capable of considering all relevant evidence that might provide a basis for imposing *237 a sentence less than death. We will deny relief.[1]
I.
On the evening of June 2, 1978, applicant appeared at the door of the office of the Red Wing Ice Cream Company, just as several of the company drivers were turning in their day's receipts. The proprietor, Richard Lang, aware that something was amiss, began to approach applicant. Applicant shot Lang once in the lower chest with a .32 calibre pistol, and then ordered the drivers up against the wall. He escaped with more than $700 and a shotgun. Lang died. At the time of this offense applicant was twenty-one years old.
The guilt/innocence phase of applicant's trial was essentially a formality. Counsel for applicant only minimally cross-examined the State's witnesses. His final summation takes up less than a full page of the statement of facts. In it counsel basically acknowledged that he had simply put the State to its proof. During his argument at the punishment phase, he further acknowledged that the only viable issue in the case was not applicant's guilt, but whether the State could prove that the statutory special issues embodied in former Article 37.071, (b), ought to be answered affirmatively.[2] It is not ineffectiveness, per se, however, for counsel to concentrate his efforts at the punishment phase in a capital murder case. Cf. Holland v. State, 761 S.W.2d 307, at 314-15 (Tex.Cr.App.1988) (it is acceptable strategy in capital prosecution to plead guilty before the jury, and courts will not second-guess that strategy). It appears counsel's trial strategy was to persuade the jury to find his client did not act "deliberately," and thus answer "no" to the first special issue, and to have applicant acknowledge and accept responsibility for his crimes as a first step to rehabilitation, in an effort to persuade the jury to return a "no" answer to the second special issue.
II.
A.
In this post-conviction application for writ of habeas corpus applicant first complains that counsel effectively abandoned youth as a basis for the jury to impose a sentence of less than death. The record reveals that, without objection, the prosecutor secured a commitment during the voir dire of each venireman who was eventually selected to serve on the jury that he or she would not let "the youthful appearance and age of a defendant ... affect your deliberations on punishment." For example, in questioning venireman Billy Davis, the prosecutor inquired:
"Q. All right, sir. Can you assure me that the youthful appearance or age of a defendant would not affect your deliberations?
A. (Prospective juror shaking head.)
Q. All right, sir. Because again, we focus back on the questions. If the evidence calls for yes answers, it doesn't matter how old or young someone is.
A. That's irrelevant."
Davis sat on the jury. Similarly, the prosecutor questioned venireman J.D. Wallace as follows:
*238 "Q. Can you assure me that the youthful appearance or age of a defendant would not affect your deliberations?
A. I believe I could.
Q. All right. Because the point is this: In determining the punishment, all that the jury is allowed to do is answer the questions. If you believe it's deliberate and if you believe there's a probability, then the age should not be a factor at all. To bring sympathy or bring in age or something else would be violating the Court's instructions saying that you're only to consider the evidence and only answer the questions. So you can't say, `Well, in my own mind, even though I believe the evidence calls for yes answers, I don't think this is a death penalty case so I'm going to vote no.' You're bound by your oath as a juror to answer the questions based on the evidence and not based upon your personal feelings or whatever, but only on the evidence. And I take it from the answers thus far that you would be able to do that; is that correct?
A. I feel that I could, yes."
Wallace was also selected to serve on the jury. The prosecutor asked each of the twelve eventual jurors some variant of the basic "can you assure me the youthful appearance and age of a defendant won't affect your punishment deliberations" question, and each one agreed he or she would not. Then, during the summation at the punishment phase of trial, the prosecutor reminded the jury of its collective commitment to disregard applicant's youth:
"You promised me on voir dire that the age of the defendant was irrelevant, that the youthful appearance of a defendant was irrelevant. You told me that you could answer the questions based upon the evidence and not merely your personal desire. * * * My purpose in this argument is to hold you to that promise."
Applicant argues that counsel's failure to object to this commitment of the jury effectively deprived him of his Eighth Amendment right to a capital jury willing and able to consider all relevant evidence militating against imposition of the death penalty; and that this in turn violated his Sixth Amendment right to the effective assistance of counsel in his defense.[3]
B.
Applicant forfeited his Eighth Amendment claim by failing to object at trial to the prosecutor's questions to eventual jurors and his remarks during punishment argument. See Ex parte Crispen, 777 S.W.2d 103 (Tex.Cr.App.1989). That youth is a relevant mitigating factor was a well known Eighth Amendment principle by autumn of 1978, when applicant was tried. See Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976) (Plurality opinion); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (Plurality opinion). It is true that after Johnson v. Texas, 509 U.S. ___, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993), the Eighth Amendment does not require jurors to consider the mitigating impact of youth beyond its relevance to the special issues. But it has been clear at least since Jurek that jurors must be empowered to consider the mitigating impact of youth as it bears upon the special issues, especially future dangerousness. Applicant should have known to object to any suggestion that jurors not take youth into account to that extent. Accordingly, applicant cannot (and perhaps for that reason, does not) argue that we should excuse his procedural default either because the basis for his objection would have been so novel as not to have been reasonably available at the time of his trial, or, certainly, because the law was so well settled against him as to render any objection at that time futile. Black v. State, 816 S.W.2d 350, at 368 (Tex.Cr.App.1991) (Campbell, J., concurring, joined by McCormick, P.J., and Clinton, Overstreet, Maloney & Benavides, J.J.). We therefore reject applicant's Eighth Amendment claim.
*239 C.
Applicant claims counsel rendered ineffective assistance of counsel under the Sixth Amendment in failing to object to the commitment of the jurors, and thereby forfeiting applicant's Eighth Amendment right to a jury able to consider his youth in mitigation of punishment. The operative test for determining whether an accused has suffered a deprivation of his Sixth Amendment right to effective assistance of counsel is that articulated in Strickland v. Washington, 466 U.S. 668, at 687, 104 S. Ct. 2052, at 2064, 80 L. Ed. 2d 674, at 693 (1984), viz:
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result was reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."
Given counsel's apparent strategy at the punishment phase of trial, it is hard to imagine that his failing to object was purposeful. Counsel was clearly attempting to paint his client as a penitent, willing to take responsibility for his offense, and therefore capable of rehabilitation. It would seem that emphasis on applicant's youth at the time of the offense would jibe, not conflict, with such a strategy. Indeed, counsel argued at the punishment phase that applicant "is still young. He still has an enormous amount of maturity if you see fit to spare him, to grow and to comprehend[.]" On the state of the record we might well conclude that counsel's error in failing to object to the prosecutor tailoring a jury to ignore youth as a factor in answering special issues was an error so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. We need not resolve that question, however, for in any event we conclude that applicant has not shown he was deprived of "a trial whose result was reliable."
In fleshing out the second, "prejudice" prong of its test for ineffective assistance of counsel, the Supreme Court observed:
"When a defendant challenges a death sentence..., the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balancing of aggravating and mitigating circumstances did not warrant death."
Strickland v. Washington, U.S. at 695, S.Ct. at 2069, L.Ed.2d at 698. Moreover, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., U.S. at 694, S.Ct. at 2068, L.Ed.2d at 698. Unlike Florida, where Strickland arose, we do not have a capital sentencing scheme that involves the direct balancing of aggravating and mitigating circumstances. The jury in a capital case under former Article 37.071, V.A.C.C.P., was simply called upon to answer the statutory special issues. After Johnson v. Texas, supra, the capital sentencer is not required to give youth any mitigating consideration beyond its relevance to the second special issue. Consistent with Johnson we conclude that the question under the "prejudice" prong of Strickland boils down to whether, but for counsel's failure to object, there is a reasonable probability that is, a probability sufficient to undermine confidence in the outcomethat the jury would have answered the second special issue differently. On the facts presented at the punishment phase of this cause, we cannot say there is.
Evidence at the punishment phase of trial revealed that by the time he was ten years old applicant was skipping school and stealing bicycles. At twelve he was sent to a detention home for boys for a year, and before he was fifteen he returned there twice. At fifteen applicant landed in the reformatory at Gatesville for eighteen months. At seventeen he was convicted of three instances of aggravated robbery and one instance of burglary of a habitation, and was assessed four concurrent six year sentences. In one of the aggravated robberies *240 applicant used a pistol, and when police tried to apprehend him, he took a hostage. In another aggravated robbery he wielded a butcher knife. At the time of his arrest for the instant offense applicant confessed that between the time of his parole and his arrest he committed at least five robberies and thirteen burglaries. Only five days after killing Lang, applicant returned to burglarize the Red Wing Ice Cream Company. Applicant estimated that from the age of twelve up to the day of trial he had spent only a year and a half outside institutional walls. He admitted that in that brief time he committed over twenty violent or potentially violent felony offenses.
In Johnson v. Texas, supra, the Supreme Court observed that "the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue." 509 U.S. at ___, 113 S.Ct. at 2670, 125 L. Ed. 2d at 307. In other words, a jury may find youth mitigating within the context of the second special issue in the sense that, and to the extent that, if his violent conduct is a product of his youth, he may be expected to outgrow it. A jury confronted with applicant's extensive history of crime and incarceration, however, is not reasonably likely to find he will outgrow his violent tendency. While twenty-one must be considered youthful for Eighth Amendment purposes, Lockett v. Ohio, supra, it is at least on the cusp of mature adulthood. Applicant's jury would have been more than justified to find from his past conduct that a pattern had been set that was not likely to change as whatever remained of the "transient qualities" of his youth passed on. Even had applicant's jury been disabused of the idea that youth was irrelevant to the second special issue, there is no reasonable probabilitynone sufficient to undermine confidence in the outcomethat it would have found him capable of reforming his conduct as the "ill effects of youth" dissipate. And as we understand Johnson, no other mitigating aspect of youth need have been considered.
Because we see no reasonable probability that had counsel objected to the prosecutor committing the jury to disregard youth it would have answered the second special issue any differently than it did, we hold applicant suffered no Sixth Amendment deprivation. Strickland, supra.
III.
Applicant complains similarly that counsel was ineffective in failing to object when the prosecutor obtained a commitment from the eventual jurors during voir dire that they would not let personal opinion whether applicant should receive the death penalty prevent them from answering the special issues strictly in accordance with the evidence. Counsel also failed to object when the prosecutor reminded the jurors at the punishment summation that "[y]ou told me [during voir dire] that you could answer the questions based upon the evidence and not merely your personal desire." However, applicant points to no mitigating evidence he claims cannot be given at least some mitigating effect within the scope of the special issues. Absent such evidence, applicant's jury had no lawful basis for imposing a sentence less than death on any basis other than the evidence as it pertained to special issues. See Johnson v. Texas, supra; Graham v. Collins, 506 U.S. ___, at ___, 113 S. Ct. 892, at 902, 122 L. Ed. 2d 260, at 275-76 (1993). See also Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990); California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987). In short, we do not perceive that the prosecutor erred to voir dire and argue to the jury as he did. Perforce, applicant's counsel did not render ineffective assistance of counsel in failing to object.
IV.
Applicant also argues that counsel was ineffective for failing to object during the State's summation at the punishment phase when the prosecutor argued that "intentional" and "deliberate" mean the same thing. The State replies that this argument was invited by defense counsel's earlier argument to the jury that it should look for evidence of premeditation before answering the first special issue "yes." As of the time of trial, however, this Court had neither clearly held that "intentional" and "deliberate" must be *241 accorded different meanings, nor that it was improper to suggest to a jury that "deliberate" may be understood to embrace an element of premeditation.[4] All that Court had said for sure as of autumn of 1978 was that terms from Article 37.071 such as "deliberate" are words of common meaning that need not be specially defined in the jury charge. King v. State, 553 S.W.2d 105 (Tex.Cr.App. 1977). It is not surprising that neither the State nor applicant's counsel objected to the argument of the other, for it was certainly within the realm of objective reasonableness for the parties in 1978 to consider the scope of the word "deliberate" in common acceptation to be wide enough to accommodate argument for a meaning as broad as "premeditated" or as narrow as "intentional." To hold otherwise now would be to engage in the kind of hindsight examination of effectiveness of counsel the Supreme Court expressly disavowed in Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L.Ed.2d at 695. We hold that counsel's performance in this cause was not constitutionally defective for failing to assail the state's characterization of "deliberate" as the same as "intentional."
V.
In an oral statement applicant made to police before his written confession, he told a police detective, "I had to shoot [Lang]. He was going to take the gun away from me," or "I had to shoot the man, because I figured he would take the gun away from me." Trial counsel for applicant unsuccessfully tried to admit this statement at the guilt phase of trial. See Davis v. State, supra, at 360. Applicant contends that counsel was ineffective in failing to elicit this evidence later in mitigation of punishment.[5]*242 Applicant's oral statement was clearly relevant to the first special issue, bearing upon the deliberateness of applicant's conduct. In our view, however, counsel for applicant may well have made a legitimate tactical decision not to bring out applicant's statement at the punishment phase because it was potentially inconsistent with his strategy to have applicant accept responsibility for his conduct and argue that he could be rehabilitated, in an effort to coax a "no" answer to the second special issue.
Several eyewitnesses testified at the guilt phase of trial that just before Lang was shot, he had been walking toward the door where applicant stood. One of these witnesses admitted making a prior statement to police in which he had asserted that Lang had "started toward [applicant] real fast like he knew he didn't belong there." From photographs in the record it appears Lang fell forward, his head only three or four feet from the doorway. Applicant himself testified at the punishment phase of trial that he had not planned or intended to shoot anyone when he entered the office: "Like I said, really [Lang] scared me just as much as it probably scared everybody in that room." Thus, counsel developed evidence from which a jury might rationally conclude that applicant's decision to shoot Lang, while intentional, was nevertheless impulsive, reactive to a perceived danger, borne out of fear, and therefore arguably not "deliberate"evidence that served the same function as the statement applicant now claims should have been elicited.
Having already presented evidence to the same effect as the oral statement, counsel for applicant may well have made a tactical decision to forgo offering the statement itself as being, in tone if not entirely in content, inconsistent with his approach to the second special issue. The jury had heard evidence at the guilt phase that Lang had instructed his drivers never to resist an armed robbery. While there is of course no evidence that applicant knew this, it might provide a basis for the jury to reject as unreasonable applicant's interpretation that Lang's conduct was provocative or threatening. Another eyewitness, Lang's son, testified that before Lang was shot, he had stopped, begun to back up, and thrown his hands up. In the premises applicant's statement that he believed Lang meant to disarm him might be construed by the jury as simply a disingenuous attempt to deflect personal responsibility, an attitude at odds with the apparent strategy to have applicant acknowledge all guilt as a predicate to rehabilitation. We have said that fear of juror backlash is an acceptable strategic reason to forego full development of relevant mitigating evidence at the punishment phase of a capital prosecution. Rosales v. State, 841 S.W.2d 368, at 376-78 (Tex.Cr.App.1992). Of course we do not know for certain that trial counsel was motivated in this way, or even that his decision was a strategic one at all. But under Strickland we must presume that counsel "made all significant decisions in the exercise of reasonable professional judgment." Delrio v. State, 840 S.W.2d 443, at 447, quoting 466 U.S. at 690, 104 S. Ct. at 2066, 80 L.Ed.2d at 695. Applicant has failed to overcome that presumption.
VI.
Applicant next claims counsel should have objected when the prosecutor informed jurors during his punishment summation that "you don't have to believe beyond a reasonable doubt that he will commit acts of violence in the future but that there's a probability he will commit them in the future, that he's likely to commit them in the future." Under former Article 37.071, (b)(2) & (c), a capital jury must find beyond a reasonable doubt that there is a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Applicant's precise complaint here is less than clear, but it may be he is contending that the prosecutor's remark could be construed as reducing the standard of proof by which the probability of future dangerousness must be found to something less than proof beyond a reasonable doubt. It seems at least as likely, however, if not more so, that the prosecutor was simply conveying to the jury that what it must find beyond a reasonable doubt is not that applicant will, certainly commit future acts of violence, but that he probably will. This latter understanding *243 of the prosecutor's remark is in all things consistent with former Article 37.071 itself. We cannot reasonably fault counsel for failing to detect in the heat of trial an ambiguity that is only apparent to us after careful reflection on the cold record. Counsel was not ineffective in failing to raise this objection.
VII.
Finally, applicant contends he received ineffective assistance of counsel on appeal. Applicant was represented on appeal by trial counsel. He now contends that counsel should have raised all of the above claims of ineffectiveness at trial for resolution on direct appeal. But because appellate counsel also tried the case, applicant contends he had a conflict of interest that prevented him from assailing his own trial effectiveness. Having found for Sixth Amendment purposes that applicant obtained effective assistance of counsel at trial, however, we hold that appellate counsel did not render ineffective assistance in failing to raise his own ineffectiveness at the trial level.
The relief prayed for is denied.
MALONEY, J., dissents.
NOTES
[1] This is applicant's second post-conviction application for writ of habeas corpus. This Court denied relief in his first application in an unpublished opinion. Ex parte Davis, (Tex.Cr.App., No. 66,930, delivered September 13, 1989).
[2] At the time of applicant's trial in 1978, Article 37.071, (b)(1) & (2), and (e), V.A.C.C.P., read:
"(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
* * * * * *
(e) If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death. If the jury returns a negative finding on any issue submitted under this article, the court shall sentence the defendant to confinement in the Texas Department of Corrections for life."
[3] Applicant also invokes the state constitutional analogs for the Sixth and Eighth Amendments, but makes no independent argument under these provisions. We will not pursue applicant's arguments under the Texas Constitution for him. See Johnson v. State, 853 S.W.2d 527, at 533 (Tex.Cr. App.1992).
[4] The holding that "deliberate" and "intentional" do not mean the same thing may have been "implicit" in our caselaw as early as 1977, in Brown v. State, 554 S.W.2d 677 (Tex.Cr.App. 1977). See Esquivel v. State, 595 S.W.2d 516, at 530, n. 5 (Tex.Cr.App.1980) (Clinton, J., dissenting). But otherwise even the Court itself seemed to understand intentional and deliberate to carry the same meaning. Blansett v. State, 556 S.W.2d 322, at 327, n. 6 (Tex.Cr.App.1977). See also Morin v. State, 682 S.W.2d 265, at 271 (Tex.Cr. App.1985) (Clinton, J., dissenting to denial of appellant's motion for rehearing); James v. State, 772 S.W.2d 84, at 105, 107 & n. 9 (Tex.Cr.App. 1989) (Clinton, J., dissenting). An express holding that the terms are not synonymous did not come until well after applicant's trial, in Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981).
This Court made clear as early as 1976 that in conducting a sufficiency review of evidence to support the first special issue we would not require evidence of premeditation, since "[t]he statutory requirements that appellant's conduct be committed deliberately does not mean that it must be a premeditated act." Granviel v. State, 552 S.W.2d 107, at 123 (Tex.Cr.App.1976) (emphasis in the original). That this Court should find premeditation is not a prerequisite to upholding an affirmative answer to the first special issue did not necessarily mean, however, that a jury would not be entitled to construe "deliberate" to encompass an element of premeditation, if that was within the jury's understanding of the common meaning of the word. It simply meant a jury would not have to construe "deliberate" to require evidence of premeditation, and if no such evidence was presented, this Court would presume the jury did not understand "deliberate" so broadly, and would decline to hold the evidence insufficient on that account. It was not until Fearance v. State, 620 S.W.2d 577, at 584 & n. 6 (Tex.Cr.App.1981) (Opinion on appellant's motion for rehearing), that it was suggested that "deliberation is but an element of premeditation[,]" rather than vice-versa. See also Russell v. State, 665 S.W.2d 771, at 784 (Tex.Cr.App. 1983) (Clinton, J., dissenting). This suggestion was apparently elevated to a holding in Nichols v. State, 754 S.W.2d 185, at 201 (Tex.Cr.App. 1988), that "deliberate" is, as a matter of law, "something less than premeditation[.]" See also White v. State, 779 S.W.2d 809, at 823 (Tex.Cr. App.1989) (State's challenge for cause against venireman who would essentially require evidence of premeditation properly sustained).
[5] Applicant also contends that the trial court erred in failing to admit this statement at the guilt phase of trial. This argument was rejected on direct appeal. Unless he can identify a constitutional or fundamental dimension to this claim, it is not now cognizable in a collateral attack under Article 11.07, supra. See Ex parte Banks, 769 S.W.2d 539, at 540 (Tex.Cr.App. 1989). The only constitutional argument he raises is that allowing the jury to deliberate at the punishment phase without benefit of this mitigating evidence was a violation of the Eighth Amendment. However, he was free to re-offer this evidence at the punishment phase of trial. Its relevance to the first special issue would have been as evident at the time of trial as it is today. As we similarly concluded ante with respect to applicant's youth, trial counsel had no excuse for forfeiting any Eighth Amendment claim by failing to re-offer the evidence at the punishment phase. He may only be heard now to complain of the ineffectiveness of his counsel in failing to re-offer his oral statement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2492497/ | 70 So. 3d 1123 (2010)
Derrick TURNER, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2009-KA-00330-COA.
Court of Appeals of Mississippi.
November 9, 2010.
Rehearing Denied May 31, 2011.
Certiorari Denied September 29, 2011.
*1124 Sanford E. Knott, Jackson, attorney for appellant.
Office of the Attorney General by John R. Henry Jr., attorney for appellee.
Before KING, C.J., GRIFFIS and ISHEE, JJ.
GRIFFIS, J., for the Court:
¶ 1. Derrick Turner was convicted for capital murder under Mississippi Code Annotated section 97-3-19 (Rev.2006). The Oktibbeha County Circuit Court sentenced Turner to life without the possibility of parole in the custody of the Mississippi Department of Corrections. On appeal, Turner claims that: (1) there is insufficient evidence to support his conviction; (2) the circuit court improperly denied his jury instruction on the impeachment of witnesses; (3) the circuit court improperly denied his jury instruction requiring acquittal where an accomplice's testimony was impeached, unreasonable, or self-contradictory; and (4) the verdict is against the overwhelming weight of the evidence. We find no error and affirm.
FACTS
¶ 2. On August 20, 2001, the Starkville Fire Department responded to a house fire at 226 Reed Road in Starkville, Mississippi. During their search of the home, they discovered Juanita Miller, who had been severely beaten. Six separate fires had been deliberately set in various rooms of the house. The house was ransacked and the belongings of Juanita and her husband, Lee Miller, had been pulled out of drawers and closets. Approximately $600 was stolen.
¶ 3. Lee had left the house at approximately 8:45 a.m. to visit two car washes that he owned. When he returned home at approximately 9:45 a.m., he found emergency personnel attempting to resuscitate Juanita. Juanita later died from her wounds, which had caused swelling of and bleeding from her brain.
¶ 4. The Starkville Police Department's investigation led to a suspect named Devail Hudson. A search dog was used to track Hudson's scent from a nearby trailer park to the back door of the Millers' home and then back to the trailer of Hudson's girlfriend.
¶ 5. Lieutenant William Lott testified that the investigation stalled until January 6, 2002, when Bentore Riley contacted the *1125 police department. Riley was concerned for his mother's safety because he had been threatened by the people who had broken into the Millers' home. Riley gave a statement to the police detailing what he knew about the events of August 20, 2001. Riley admitted that he had been the lookout, and he was arrested for his involvement in the crime.
¶ 6. At trial, Riley testified that he saw Turner, Hudson, Demarcus Evans, James Pastor, Willie Prater, Josh Wood, and Destiny Moore standing at the corner of Northside Drive and Westside Drivean intersection near Lander's Trailer Park and the Millers' homeat approximately 9:00 a.m. on August 20. Riley and Moore began to argue because Moore was wearing Riley's tennis shoes. Hudson told Moore to return the shoes to Riley. Moore went across the street to his house to get another pair of shoes.
¶ 7. Riley heard Hudson say to the group, "Let's go." Prater asked, "What are you going to do?" Hudson responded, "We fixing to go over there to that woman's house and see what she's got in there." Prater asked, "What we going to do if she finds us in there?" Hudson said, "We're going to kill her." Riley testified that the group forced him to act as their lookout.
¶ 8. Riley watched the group enter the Millers' back door. Riley saw Turner run out of the house and fall onto the grass. The rest of the group ran from the house, and Hudson and Prater were the last to leave. Riley stated that the group returned to the trailer park. Riley testified that he attempted to call the police, but he was unsuccessful.
¶ 9. Denise Stephens testified that she was delivering Meals-on-Wheels on the morning of August 20, 2001. She said she usually turns her car around at the entrance to Lander's Trailer Park located at the corner of Westside Drive and Northside Drive. That morning, she was unable to turn around because a group of four or five men was standing at the entrance. Of those in the group, she recognized only Hudson and Riley.
¶ 10. Lt. Lott testified that he took a statement from Turner on January 14, 2002. Turner said that he went to work at 7:00 a.m. on August 20, 2001, and worked until 4:30 p.m. Turner told Lt. Lott that he worked for Hodges Construction installing pipe on the Highway 25 bypass. Lt. Lott contacted Hodges Construction and was informed that Turner was not employed there on August 20, 2001.
¶ 11. Turner was called back to the police station to give a second statement. He again said that he was at work with Hodges Construction at the time of the crime. When Lt. Lott told Turner that Turner did not work for Hodges Construction on August 20, 2001, Turner stated that he must have been at home asleep that day. Dina Addy, a business manager at Hodges Construction, testified that Turner's first day of employment was September 11, 2001.
¶ 12. Turner's mother, Mary Turner, testified that Turner drove her to Tupelo, Mississippi, on the morning of August 20, 2001. They went to visit her daughter and Turner's sister, Sherbert Burkhalter. Mary said that she remembered the date because when she returned to work the following day, some of her customers were talking about Juanita's murder.
¶ 13. Burkhalter also testified that Turner and his mother had visited her in Tupelo on August 20th. She was employed at Hardee's, and she said that Mary and Turner had visited her at work. Turner, who was unemployed at the time, filled out an application to work at Hardee's. The application is dated August 20, *1126 2001. However, Burkhalter admitted on cross-examination that the applications could be taken from the store, filled out at a later time, and dated and returned whenever the applicant chose.
¶ 14. The jury found Turner guilty of capital murder, and Turner was sentenced to life without the possibility of parole.
ANALYSIS
1. Whether there was sufficient evidence to support Turner's conviction.
¶ 15. There was no dispute at trial as to the crime that occurred. Overwhelming evidence was presented to prove that Juanita was brutally beaten in the course of a robbery and that her injuries resulted in death. The disputed issue during the trial was whether Turner was one of the people involved in the crime. In order to prove his involvement, the State presented the testimony of Riley, an accomplice who the State had also charged with capital murder. Turner claims that Riley's testimony was unreliable and was insufficient to prove that Turner had participated in Juanita's murder.
¶ 16. When reviewing the denial of a motion for a directed verdict on an objection to the legal sufficiency of the evidence, we examine the evidence in a light most favorable to the State to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State, 895 So. 2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). "[T]he jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses." Neal v. State, 451 So. 2d 743, 758 (Miss.1984).
¶ 17. Turner argues that Riley's accomplice testimony cannot support Turner's conviction because it was uncorroborated testimony that was unreasonable, self-contradictory, or substantially impeached. The supreme court set forth this standard for using accomplice testimony in Jones v. State, 368 So. 2d 1265, 1269 (Miss.1979), stating:
The rule is well settled that, while a conviction may be sustained on the uncorroborated testimony of an accomplice, it is equally well settled that such a conviction should not be upheld where such testimony is improbable, self-contradictory, and unreasonable on its face, and especially where it is impeached by unimpeached witnesses.
Id. (quoting Creed v. State, 179 Miss. 700, 705, 176 So. 596, 597 (1937)).
¶ 18. In Evans v. State, 460 So. 2d 824, 826-27 (Miss.1984), the supreme court elaborated upon Jones, holding:
the uncorroborated testimony of an accomplice may be sufficient to convict an accused. Where there is slight corroborative evidence, the accomplice's testimony is likewise sufficient to sustain the verdict. However, such testimony should be viewed with great caution and suspicion and must be reasonable, not improbable, self-contradictory or substantially impeached.
(Emphasis added).
¶ 19. Riley gave his first statement to the police at 8:30 a.m. on January 6, 2002, stating the following:
The day the old lady was killed (08-20-01) before she was killed at Reed R[oa]d... I had walked to my grandma's and got a pear. When I was walking back down Northside, I cam[e] to [the] corner of Northside and Westside. Standing at the stop sign at the corner were James Paster, Willie Prater, Destiny Moore, "Little Mark" (real name unknown)[,] Devail Hudson, and another tall[,] skinny[,] black male with two front teeth *1127 missing named Derwin. I notice Destiny Moore had on a pair of grey Nautica tennis shoes. I had a pair of grey Nautica tennis shoes without the laces stolen from my house. Destiny and I started to get into it because he had my shoes. Devail told Destiny to give me my shoes. While I was there Devail was talking about robbing that lady, someone said [what] are you gonna do to the lady? Devail said, I'm gonna rob that old white b* * *h, I know she got [sic] something. Then Willie Prater said to Devail, "Are you gonna kill that old lady?" Devail said, "Yeah, I'm gonna kill her." Devail wanted to see what the old lady had. After, I got my shoes from Destiny, Devail said let's go and James Paster, Willie Prater, Destiny Moore, "Little Mark," Devail Hudson and Derwin started going to the old lady's house at the corner of Reed R[oa]d and Westside. I was walking toward[] my house at Lander's Trailer Park, I got to the gate at [the] entrance to Westside for Lander's Trailer Park, I saw all them go into the old lady's house. Then a little later, I saw Derwin run out [of] the house and fall down. Then Prater went on Reed [Road] from the house. Destiny went to his house. Devail and the other guys ended up in Lander's Trailer Park but Little Mark and Destiny went to Destiny's house. I went to my house. But I saw Devail go back into the house again. I didn't see him leave this time. I walked down to the store to meet my mother. I think Devail went back into the house to kill the old lady and burn the house down. Then later I saw Devail give Derwin a watch that Devail had. It was a silver watch, a Nautica watch. Devail gave this watch to Derwin because he was talking about what they got out of the house, meaning the old lady's house. Derwin told Devail, I had to get out of there for what y'all were doing. Devail said, "You like this watch." Derwin said you got it free handed. Devail didn't say anything. One of the guys said there goes Bubba. I said y'all are gonna get caught, in my mind. They were gonna get the same thing done to them for killing the old lady. Devail had changed clothes the second time I saw him after he went back into the old lady's house. Devail was wearing blue colored clothes and changed into something different after he robbed the house. When Devail said he was gonna kill the old lady, I had no doubt in my mind he would kill, but I wasn't around to see it. Devail was saying at the stop sign he didn't want to wear a particular shoe when he robbed the old lady. Destiny went to his house and got another pair of shoes. Destiny lives right near the stop sign at Northside and Westside. Then they went and robbed the old lady. I feel it is the right thing to do to tell the police what happened to the old lady. I would want someone to do the same thing I did if it was my family.
Riley gave a second statement at 4:10 p.m. that day, stating:
On 08-20-01[,] Devail Hudson, Willie Prater, Destiny Moore, James Paster, Demarcus Evans and Derrick Turner threatened me. Destiny Moore was wearing my grey Nautica Shoes. They told me I was gonna be their lookout for robbing the old lady at Reed R[oa]d and Westside. They said my shoes had already been there. I didn't want to be the lookout, I was scared. Willie Prater said to suck it up, stop[] being a b* * *h. Devail said[,] "Let's go," and they all went inside the old lady's house. I did watch out for them[,] but I didn't want to. Derrick Turner was the first to run out[,] and he fell down. They all later came out of the house and met up *1128 at Lander's Trailer Park. Then Devail went back into the house by himself. I saw him go back in the door as I went up the road. I didn't want to be around them anymore. I didn't get any cut from the robbery. I knew Devail was gonna kill her.
¶ 20. We must first determine whether Riley's testimony is uncorroborated as Turner contends. We find that the record shows that the State offered some corroboration of Riley's account. Even though Riley's first statement referred to Turner as Derwin instead of Derrick, Riley described Turner as a "tall, skinny, black male with two front teeth missing." Turner's mother, Mary, testified that this description correctly described Turner. Riley further testified that he had seen the group of men enter the Millers' back door from where he was standing at the corner of Northside Drive and Westside Drive. Lt. Lott testified that, during his investigation, he was able to see the Millers' back door from that spot. Also, the search dog's handler testified that the search dog tracked Hudson's scent to and from the back door of the Miller's home indicating that Hudson had entered through the back door as Riley stated.
¶ 21. Stephens testified that she saw a group of menincluding Hudson and Rileystanding at the entrance of Lander's Trailer Park on the morning of August 20, 2001. Her statement corroborates Riley's testimony that he was with the group of men at the entrance to the trailer park on the morning of the murder.
¶ 22. Even if we conclude that this amounts to only slight corroboration of Riley's testimony, we find that his account of Turner's involvement in the crime was not unreasonable, improbable, self-contradictory, or substantially impeached. Turner claims that Riley's testimony was all of these things because Riley, who was also charged with capital murder in 2002, filed certain pro se pleadings in his case under the alias Q. Marqelilous Tirgger. In those pleadings, Riley falsely claimed to be married with children. Riley admitted that he had filed these falsified court documents to bring attention to his pending case.
¶ 23. Turner further claims that Riley's testimony is untrustworthy because Riley has been charged in the crime. Turner argues that the State does not believe its own witness because, despite Riley's assertion that he was not involved in the murder, the State has maintained its charge against Riley. However, there is a distinction here. Riley claims that he was not involved in the plan or the actions taken to rob and murder Juanita. But Riley admitted that he had acted as a lookout for the group because he was afraid of and threatened by Hudson. Riley's role as the lookout, to which he admitted, was the basis of his arrest. That the State maintained the charge against Riley does not prove any untruth in Riley's testimony.
¶ 24. Lt. Lott testified that Riley had lied to him on four occasions: (1) Riley claimed to have called 9-1-1 on the day of the murder, although there is no record of that call; (2) Riley claimed that he gave a statement to an officer on the day of the murder, although he was never interviewed by law enforcement until January 6, 2002; (3) he referred to the defendant as Derwin, not Derrick, in his first statement; and (4) he did not admit that he was the lookout until he made his second statement. Lt. Lott testified that, despite these lies by Riley, he believed Riley's testimony as to Turner's involvement in the crime.
¶ 25. Riley's description of Turner was never contradicted. In his first statement, Riley described a man named Derwin who was a tall, skinny, black male missing two front teeth. The State presented evidence *1129 that Riley and Turner worked at the same construction company with a man named Derwin. The State must be given the benefit of all reasonable inferences that may be drawn from the evidence. Corbin v. State, 585 So. 2d 713, 715 (Miss.1991). Riley gave an exact description of Turner; it is reasonable to infer that Riley mistakenly called Turner by the wrong name in the first statement. Riley clearly named Turner as one of the perpetrators in his second statement.
¶ 26. We cannot hold that a reasonable jury could not give any credit to Riley's testimony as a result of his lies. All of the lies, except the issue of Turner's name, relate to Riley's potential involvement in the murder. It is entirely reasonable that Riley was able to give an account of what he saw yet attempt to distance himself from any involvement in the crime. Riley's statements identifying Turner as one of the men who went inside the Millers' home were not impeached. The jury was able to weigh the credibility of Riley's testimony. There was sufficient evidence to support the jury's decision. Accordingly, this issue has no merit.
2. Whether the circuit court improperly refused Turner's requested jury instruction on the impeachment of witnesses.
¶ 27. Turner claims that the circuit court improperly refused Turner's requested jury instruction on the impeachment of witnesses. Specifically, he argues that because the State admitted that Riley had been untruthful in his prior statements to the police, the circuit court was required to give the impeachment instruction. The State counters that the jury's duty to weigh the testimony was covered in another instruction.
¶ 28. "Whether to give a jury instruction is within the sound discretion of the trial court." Chamberlin v. State, 989 So. 2d 320, 341-42 (¶ 80) (Miss.2008) (citation omitted). We review the jury instructions given as a whole to determine whether the refusal of a particular instruction was in error. Taylor v. State, 763 So. 2d 913, 915 (¶ 8) (Miss.Ct.App.2000). If the instructions fairly state the law of the case and no injustice is created, no reversible error will be found. Id. "A defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Poole v. State, 826 So. 2d 1222, 1230 (¶ 27) (Miss. 2002) (quoting Smith v. State, 802 So. 2d 82, 88 (¶ 20) (Miss.2001)).
¶ 29. Turner offered Instruction D-2, which states:
The testimony of a witness may be discredited by showing that the witness testified falsely concerning a material matter, or by evidence that at some other time the witness said or did something, or failed to say or do something, which is inconsistent with the testimony the witness gave at this trial.
Earlier statements of a witness were not admitted in evidence to prove that the contents of those statements are true. You may consider the earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness and therefore whether they affect the credibility of that witness.
If you believe that a witness has been discredited in this manner, it is your exclusive right to give the testimony of that witness whatever weight you think it deserves. I remind you that a defendant has the right not to testify. When the defendant does testify, however, his *1130 testimony should be weighed and his credibility evaluated in the same way as that of any other witness.
¶ 30. There seems to be no dispute as to whether this instruction was a correct statement of the law or whether it had a foundation in the evidence. We are asked to determine whether it was sufficiently covered elsewhere in the instructions. The State points us to the circuit court's Instruction C.01, which states in part:
You are the sole judges of the facts in this case. Your exclusive province is to determine what weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case. You are required and expected to use your good common sense and sound honest judgment in considering and weighing the testimony of each witness who has testified in this case.
¶ 31. Turner acknowledges Swann v. State, 806 So. 2d 1111, 1117 (¶¶ 23-24) (Miss.2002), where the supreme court held that a general instruction on the weight and credibility of a witness, together with the cross-examination and closing argument that reveal the inconsistencies in a witness's testimony, is a basis to refuse an impeachment instruction. But Turner maintains that the holding in Swann does not apply when the witness admits he has lied or the State concedes that the witness has lied. He cites Ellis v. State, 790 So. 2d 813 (Miss.2001) to support this argument. However, we find that Ellis is distinguishable from this case.
¶ 32. Antwon Ellis's conviction for murder was based largely upon the testimony of his accomplice, Kendaryll Robinson. Id. at 814 (¶ 2). Robinson testified that, while acting as a lookout, he heard a gunshot and saw a man fall to the ground. Id. He looked up and saw Ellis shooting at the victim. Id. Robinson admitted that he had lied when he first told the police that he had not seen anyone fire any shots. Id. at (¶ 3).
¶ 33. At trial, Ellis requested an impeachment instruction. The circuit court refused Ellis's instruction and gave its own general instruction about weighing the credibility of witnesses. Id. at (¶ 4). Importantly, a cautionary instruction concerning the testimony of an accomplice was not given.[1]Id. at 816 (¶ 8). Robinson directly contradicted his own statement that was at the heart of the issuewhether Ellis was involved in the crime. Id. at (¶ 9). The supreme court reversed Ellis's conviction and remanded the case for a new trial. Id. at 817 (¶ 10).
¶ 34. Here, unlike Ellis, the jury was instructed to consider and weigh Riley's testimony as an accomplice with great care, caution, and suspicion. The two cases are similar in that the accomplices both lied at some point in their prior testimonies. However, there is a distinction.
¶ 35. In Ellis, the accomplice contradicted his statement that Ellis was involved in the crime. That was the key issue before the jury. Here, Riley was shown to have lied about four matters: he said he had called 9-1-1; he said he had given a statement to an officer on the day of the murder; he referred to Turner as Derwin instead of Derrick; and he did not immediately admit that he had acted as a lookout. These inconsistencies do not go to the ultimate issue of whether Turner was one of the men involved in the crime. The only one related to Turner is the *1131 mistaken name. As discussed above, Riley did give the wrong name initially, but he gave a perfect description of Turner despite the error in the name. It is evident that Riley was attempting to avoid punishment for his role in the crime by denying his involvement as the lookout and by claiming that he had called the police to report the crime.
¶ 36. However, these inconsistencies were fully revealed during cross-examination and closing argument. The jury was aware that it should take caution when considering Riley's accomplice testimony. According to Swann, we conclude that the circuit court's refusal of Turner's requested impeachment instruction was not an abuse of discretion; therefore, this issue has no merit.
3. Whether the circuit court improperly denied Turner's jury instruction requiring acquittal where an accomplice's testimony was impeached, unreasonable, or self-contradictory.
¶ 37. Turner argues that the jury should have been instructed that he could not be convicted based on the uncorroborated testimony of an accomplice when that testimony was impeached, unreasonable, or self-contradictory. At trial, Turner offered Instruction D-8, which states:
The Court instructs the jury that the uncorroborated testimony of an accomplice that is unreasonable, self-contradictory or substantially impeached at trial is not enough to convict an accused of an offense. If you find that Bentore Riley's testimony was either unreasonable, self-contradictory, or substantially impeached, his testimony alone may not be used to convict Derrick Turner of capital murder.
¶ 38. The State objected and argued that the instruction went to the sufficiency of the evidence, which was a question of law for the circuit court to determine. The circuit court agreed and further held that the instruction was repetitious and a comment on the witness's testimony.
¶ 39. Turner essentially makes the same argument as in his first assignment of errorthere was insufficient evidence to convict Turner based on the impeached, unreasonable, or self-contradictory testimony of Riley. He claims that the jury should have been instructed on that point. However, the sufficiency of the evidence is an issue of law. Hughes v. State, 735 So. 2d 238, 279 (¶ 195) (Miss.1999). The jury was not required to make such a conclusion of law.
¶ 40. Turner cites this Court's decision in Riley v. State, 1 So. 3d 877 (Miss.Ct.App. 2008) in support of his argument. James Riley argued that the verdict was against the overwhelming weight of the evidence because his accomplice had testified that the firearms Riley possessed were stolen. Id. at 882 (¶ 16). As a part of our analysis, we quoted the instruction given to the jury, which stated:
if you find the testimony of Martin Ickom, an alleged accomplice of the defendant in this case, to be uncorroborated by other evidence, then and in that event, you should view such testimony with great caution and suspicion and that it must be reasonable and not improbable or self-contradictory or substantially impeached.
Id. at (¶ 18). We held that jury instructions like this ensured that the jury "viewed the evidence with the proper amount of skepticism"; therefore, the verdict was not against the overwhelming weight of the evidence. Id.
¶ 41. Riley is unlike this case in two respects. First, the issue in Riley was whether the verdict was against the overwhelming weight of the evidencea determination *1132 to be made by an appellate court after a conviction. No issue was ever raised as to whether the jury instruction was proper. Nor did this Court comment that the jury instruction given in Riley was required. This Court merely quoted the instruction given to the jury as evidence that the jury's verdict acknowledged the suspicion placed upon the testimony of an accomplice.
¶ 42. Second, the jury instruction given in Riley is much different from Turner's proposed Instruction D-8. The instruction in Riley informed the jury that it should weigh the uncorroborated testimony of an accomplice with great caution. Instruction D-8 states the principle of law that a defendant may not be convicted solely on the uncorroborated testimony of an accomplice when that testimony is impeached, unreasonable, or self-contradictory. Our decision in Riley does not support Turner's argument that his proposed instruction was required. We find no abuse of discretion in the circuit court's refusal of Instruction D-8; thus, this issue is without merit.
4. Whether the jury's verdict is against the overwhelming weight of the evidence.
¶ 43. Lastly, Turner contends that the jury's verdict is against the overwhelming weight of the evidence. Specifically, he claims that the weight of the evidence favored him if the discrepancies in Riley's testimony were compared to his alibi evidence.
¶ 44. "When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Bush, 895 So.2d at 844 (¶ 18). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.
¶ 45. We have discussed Riley's testimony at length above. To rebut Riley's testimony, Turner presented several alibi witnesses. His mother and sister testified that Turner was in Tupelo on the morning of the murder. Turner presented an application for employment at Hardee's in Tupelo. The application was dated the same day as the murder; however, it was admitted that the date on the application could not be verified.
¶ 46. Riley's testimony was not the only evidence that refuted Turner's alleged alibi. In Turner's original statement to the police, he claimed that he was at work with Hodges Construction on the morning of the murder. When the police told Turner that he was not yet employed at Hodges Construction at that time, Turner claimed that he must have been at home asleep. He never stated that he was in Tupelo that morning.
¶ 47. Weighing the evidence in the light most favorable to the verdict, we find that the jury's verdict is not contrary to the overwhelming weight of the evidence. Allowing the verdict to stand does not sanction an unconscionable injustice. Accordingly, this issue is without merit.
¶ 48. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL *1133 COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE, ROBERTS CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
NOTES
[1] The test announced by the Ellis court to determine whether a cautionary instruction should be given has been overruled by Williams v. State, 32 So. 3d 486, 491 (¶ 17) (Miss.2010). Even so, the distinction remains that there was no instruction in Ellis that cautioned the jury about its reliance upon accomplice testimony. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2576627/ | 8 F. Supp. 2d 897 (1998)
William Prince DAVIS, Petitioner,
v.
Gary JOHNSON, Director, TDCJ, Respondent.
No. CIV. A. H-98-1415.
United States District Court, S.D. Texas.
June 2, 1998.
*898 Ken Jerome McLean, Houston, TX, for Petitioner.
*899 Erik E. Cary, Assistant Attorney General, Austin, TX, for Respondent.
Opinion on Denial of a Writ of Habeas Corpus
HUGHES, District Judge.
1. Introduction.
A state prisoner under a death sentence seeks to overturn the imposition of that punishment. He claims his counsel ineffectively assisted him. Because he did not file his petition in the allotted time, his petition will be denied. If Davis had met the time limits, his attack on the judgment would still fail because he has not demonstrated that his sentence would have been different if his counsel had tried the case as Davis says he should have.
2. The Murder.
After a life of crime up to the age of twenty-one, William Prince Davis murdered a store manager, generating the death sentence. On June 2, 1978 yes, '78 Davis robbed the Red Wing Ice Cream Company as the company's drivers returned with their day's receipts. Davis held a .32 caliber pistol on Richard Lang, the manager. Davis shot Lang in the chest in front of several witnesses. Lang died.
Shortly after killing Lang, Davis confessed. He told an officer, "I had to shoot the man. He was going to take the gun away from me." The following day, another officer took his written statement.
3. The Trial.
Davis was indicted for capital murder and had two lawyers Tom Dunn and George Pletcher appointed to defend him. The guilt phase of the trial was brief. On September 18, 1978, Davis was convicted of capital murder.
The more vigorously contestable and contested part of the trial was the punishment. The court asked the jury two questions about the punishment:
Issue No. 1
Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, William Prince Davis, that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?
Issue No. 2
Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, William Prince Davis, would commit criminal acts of violence that would constitute a continuing threat to society?
The charge informed the jury that a no answer to either question would mean life in prison and a yes answer to both would mean death. The jury answered both questions affirmatively within hours, and Davis was sentenced to die.
4. Appeals.
The Texas Court of Criminal Appeals affirmed. Davis v. State, 597 S.W.2d 358 (Tex. Crim.App.1980). One of Davis's trial lawyers, Dunn, assisted him in that direct appeal. Davis then filed several unsuccessful state court petitions for writs of habeas corpus. The Court of Criminal Appeals twice denied Davis collateral relief, once in a brief, unpublished opinion and later in a lengthy, published opinion. Ex parte Davis, 866 S.W.2d 234 (Tex.Crim.App.1993) (per curiam).
Davis now petitions this court for a writ of habeas corpus, claiming that his counsel was ineffective in (1) failing to have the jury consider Davis's youth in mitigation, (2) failing to object to the prosecutor's equating deliberate and intentional, and (3) failing to present evidence that would have demonstrated an absence of deliberateness. The Texas Court of Criminal Appeals addressed each of these claims in its collateral review. Initially, Johnson did not respond to Davis's arguments; rather, he moved to dismiss Davis's petition on the ground that Davis filed it too late. The court has since received Johnson's response to the merits.
5. Timing.
The threshold issue is: Was Davis's petition filed on time? Because Davis's motion for appointment of counsel and application for a writ of habeas corpus were filed *900 after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, it applies to his case. The act sets a limit of one year after the last of a series of events for a state prisoner to file an application in federal court collaterally attacking a criminal judgment. 28 U.S.C. § 2244(d) (Supp.1997). As Johnson admits, Davis is allowed a one-year grace period after the effective date of the AEDPA. United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.1998). Under the statute, Davis had to file his petition by April 23, 1997. At his request, however, this court extended the time to May 26, 1997. Parenthetically, this court may have erred in assuming that it had the authority to extend the statutory deadline.
Though the point is far from clear, the court assumes that when Davis moved for appointment of counsel and for an extension of time he satisfied the time limit on initiation. Still, at some point he had actually to file his petition. That point came and went on May 26, 1997. Davis did not file anything let alone his petition for over eight months after the extended deadline. Over a year passed between his initial request on February 27, 1997, for an extension and his next request on March 25, 1998, for an extension without Davis's filing anything. He has no explanation for missing the prescribed time as extended. Whether Davis satisfied the original time limit is now academic because he plainly did not file within the ordered time.
Davis may argue that he did not have an attorney even after the court appointed Ken J. McLean to represent him. McLean indicated on the first motion for extension, "Attorney for Petitioner on motion only." He reiterated that in the request itself but said that he would be available to represent Davis fully only if an extension were granted. The lawyer said that he had four other cases with deadlines of April 21. The court granted the extension and appointed McLean attorney of record shortly after the request for counsel and first extension request were filed.
In the second motion for extension, McLean implied that he had only recently learned of his appointment: "On February 19, 1998, I was faxed a copy of an order signed on February 28, 1997, appointing me to represent Petitioner Davis." McLean's address and telephone on both motions and on the order appointing him are correct. Davis's June 2, 1998, response to Johnson's motion to dismiss reiterates that McLean never knew of the appointment. It fails to explain why, knowing the deadline was approaching in the spring of 1997, he did not check to see whether he had been appointed. Surely he would have inquired about the status of both motions sometime before the expiration of the original deadline even had he not actually known of the orders. None of Davis's papers provides a good explanation for missing the May 26, 1997, deadline.
On February 18, 1998, without realizing that the first-extended deadline had passed, the court inadvertently set a new deadline of April 20, 1998, and on April 3, 1998, extended it again to May 8, 1998, on Davis's request. While the court should have dismissed the petition as time-barred rather than setting the new deadlines, its orders did not prejudice Davis. By that time the court was without power to resurrect the petition. With or without the 1998 deadlines, Davis did not file by May 26, 1997, as ordered. His petition for a writ of habeas corpus is time-barred.
Parenthetically, however, the court questions why Johnson neglected to raise this issue in the eight months of total default by Davis. Johnson knew that Davis had missed the deadline in mid-1997, and he did not oppose Davis's second request for an extension in March of 1998. The people of Texas have not had effective assistance of counsel for some years.
Timing rules work both ways: if the state wants to kill a man because his filings are not on time, it should raise that issue promptly. If limitations applies to Davis, laches should apply to Johnson. Johnson waited until May 1998 to raise a point it knew of in May 1997. Responsible government's prompt objection would have saved everyone time and trouble, especially since the court, Davis, and Johnson are funded by the taxpayers.
Because the government's taking a person's life should invoke the most awesome governmental accountability, the court will address the merits of the petition in an abundance of caution.
*901 6. Habeas Corpus.
The writ of habeas corpus is an exercise of judicial power outside the usual hierarchy of suits and appeals. Since before the Constitution was ratified in 1789, the writ has protected individuals from wrongful punishment. It allows individuals to question their criminal convictions when they believe they are being held in violation of the law of the United States. The writ gives the federal courts the power to reconsider a state's trial and appellate conclusions.
The state of Texas has the power to kill a person as punishment. If that decision is constitutionally sound, both in substance and in process, it must be affirmed by the federal courts. Texas is wholly bound by the United States laws and constitution. This court's narrow, yet careful, review exists only to ensure that the state met its responsibility to afford full constitutional protections to a man it has sentenced to die. The standards must be high when the penalty is death.
7. Ineffective Assistance.
The Constitution requires that a defendant have a lawyer because an accused on his own cannot focus his case through the complex lens of the legal process without professional assistance. U.S. Const. Amend. VI. Reasonable help that precludes substantial injustice rather than perfect lawyeringis required.
To prove that his counsel did not effectively assist him under the Constitution, Davis must show that their performance was deficient and that the deficiency prejudiced him.
Deficiency. His counsel must have made errors so serious that he did not have reasonably competent help, denying him a reasonable opportunity to present his best positions through proper means. Counsel's conduct must fall outside the bounds of prevailing, objective professional standards. Mere adequacy not perfect justice is all that is required.
Prejudice. The defendant must show a reasonable probability sufficient to undermine confidence in the outcome that the result would have been different absent counsel's deficient performance.
Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2067, 80 L. Ed. 2d 674 (1984); United States v. Blankenship, 923 F.2d 1110, 1117 (5th Cir.1991).
This court's examination of counsel's performance is highly deferential; the law strongly presumes that counsel's performance was adequate and that choices by counsel at trial were tactical. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; United States v. Green, 882 F.2d 999, 1003 (1989). The factual findings by the state court benefit from a presumption that they are correct. 28 U.S.C. § 2254(d); Marshall v. Lonberger, 459 U.S. 422, 432, 103 S. Ct. 843, 850, 74 L. Ed. 2d 646 (1983); Sumner v. Mata, 449 U.S. 539, 547, 101 S. Ct. 764, 769, 66 L. Ed. 2d 722 (1981).
Even if counsel did err, Davis is not entitled to relief unless the error substantially affected the jury's likelihood of rendering a verdict less adverse to Davis. Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946). Irrespective of the precise formulation of these issues, one of the purposes of the great writ is to allow an independent judiciary to ascertain "whether the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993).
8. Youth.
Davis's first claim is that his counsel ineffectively presented his youth to the jury in mitigation of his punishment. During voir dire, the prosecutor received explicit guarantees from some members of the venire who were selected as jurors that they would not consider Davis's youth to mitigate his responsibility. In his closing, the prosecutor reminded the jurors of that guarantee. Davis's counsel did not object.
Davis says that the failure to object constituted deficient lawyering. He argues that the jury might well have imposed a lesser sentence had it been "allowed" to consider his age. As murders go, Davis says, his was not particularly gruesome since he fired only *902 one shot and killed only one person. He urges that this was not a murder from which a death sentence inexorably flowed and that a jury properly considering Davis's age might well have rejected that sentence. He argues that the prosecutor's statements to the jury, without objection, foreclosed the jury from considering youth as mitigation.
A. Deficiency.
The prosecutor led the jury to believe that it could not consider Davis's youth, and Davis's counsel did not object. Davis's counsel probably technically erred in not objecting to the prosecutor's statements about youth.
Because youth seems to be correlated with current dangerousness but not necessarily future dangerousness it can be a mitigating factor. Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 2669, 125 L. Ed. 2d 290 (1993). Because the young become less likely to commit crimes as they age, present youth may negate future dangerousness. The question on future dangerousness is sufficient to allow the jury to consider mitigating evidence; no explicit instruction about mitigating circumstances is required. See Turner v. Johnson, 106 F.3d 1178, 1189 (5th Cir.1997); Spivey v. Zant, 661 F.2d 464, 471 & n. 10 (5th Cir. Unit B Nov.1981). Nor is a special instruction on youth required; the second special issue allows the jury to consider youth in mitigation. Tucker v. Johnson, 115 F.3d 276, 281-82 (5th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 605, 139 L. Ed. 2d 492 (1997); Graham v. Collins, 950 F.2d 1009, 1029-1032 (5th Cir. 1992) (en banc), aff'd, 506 U.S. 461, 113 S. Ct. 892, 122 L. Ed. 2d 260 (1993). See also Johnson, 509 U.S. at 370, 113 S. Ct. at 2670 ("[N]o additional instruction beyond that given as to future dangerousness was required in order for the jury to be able to consider the mitigating qualities of youth presented to it."). Davis's jury was not foreclosed, at least by the court, from considering Davis's youth in mitigation.
While technically deficient, not making that particular attack on the state's position in the context of the trial as a whole was not below the standard of reasonably competent counsel in serious cases.
B. Prejudice.
Even if this court assumes Davis's counsel was deficient in failing to object, four things preclude it from finding that the deficiency prejudiced Davis's defense.
(1) Objections.
Whether Davis's counsel erred is a distinct question from whether that error caused Davis's counsel's performance as a whole to be substandard. A murder trial is not a collegiate debate, and every opportunity to object carries a danger of negative reaction from the jury and a powerful response from the other side.
At the punishment phase, the jury had the evidence of Davis's age, the court's instructions, and Davis's argument that his age mitigated against death. The jury also had the state's argument that age did not count. One way to evaluate the importance of the missing objection is to consider the probable consequences of its having been made.
If it had been made, the court might have overruled it with the customary one word announcement. That error would have been part of the direct appeal on inadequate presentation of youth; the addition of this one extra "point" would not have materially changed the weight of that issue on appeal.
If it had been made, the court might have sustained it with the customary four-word instruction, "Disregard the last argument." This correct ruling would not have changed the substance of the state's position in argument; the state did argue and would have continued to argue that the jury should not use Davis's youth in mitigation even if they could consider it.
With or without the objection, the jury could account for mitigating factors in their answers to the penalty questions. Mitigating evidence and Davis's argument on how to use it was within the effective reach of the sentencer; the objection is essential to competent representation only if in its absence it was reasonably likely that the jury would have considered themselves foreclosed from using youth in answering one of the penalty *903 issues no. Johnson, 509 U.S. at 367-70, 113 S. Ct. at 2669-70.
(2) Instructions.
Though the prosecutor told the jury that it could not consider Davis's youth, the final instruction given to the jury by the court in the punishment phase charge was:
You are the exclusive judges of the facts proved and the credibility of the witnesses and the weight to be given their testimony, but you are bound to receive the law from the Court which has been given you and you are bound thereby.
(Tr. at 22). Although the court did not tell the jury to consider youth specifically or mitigating factors generally and although the prosecutor told the jury not to consider youth, the second question allows the jury to consider youth as mitigation. The court told the jury that the charge was the law.
(3) Argument.
Davis's counsel quite plainly made the youth argument:
This man a year-and-a-half remember this a year-and-a-half of free time in a whole life of twenty-one years. He is still young. He still has an enormous amount of maturity if you see fit to spare him, to grow and to comprehend, which I believe is probably his greatest failing, the complete comprehension of life and what's going on in this world around him .... [T]he full comprehension of everything in life itself and the duties herein he has not received .... [Y]ou can't possibly, you cannot possibly say that this man is beyond reform ....
(Tr. at 1131-32). Davis's age was not concealed from the jury; it was in evidence, and both sides argued its significance for punishment. The jurors had the means to use Davis's youth to respond in his favor if they concluded the evidence affected the substance of those inquiries. Since the court did not foreclose the jury directly or indirectly from considering youth, the jury presumably considered and clearly rejected it.
(4) Countervailing Interpretation.
Finally, even if the jury had been expressly told by the court to consider mitigating circumstances in general and youth in particular and even if defense counsel had objected to the prosecutor's statements (or, better yet, the prosecutor had never made them) the result would not have been different.
While youth can be mitigating, it is less than implausible that youth would have been a mitigating factor in this case. As Davis admits in his petition, by the time he was twenty-one he had been convicted for burglary and three aggravated robberies. He used a pistol and took a hostage in one of the robberies. He held a butcher knife on a pregnant woman in another. He committed at least five robberies and fifteen burglaries between his last parole and his arrest for Lang's murder. Virtually all of his teenage years were spent in custody. He admitted that during the year-and-one-half that he was not in jail he committed over twenty felonies. He confessed in writing to burglarizing the Red Wing Ice Cream Store the week after he murdered Lang there.
A jury would be hard-pressed to chalk Lang's death up to the vagaries of youth. Davis was already a hardened criminal when he killed Lang. Properly considered, his youth was an exacerbating not mitigating factor. See Ransom v. Johnson, 126 F.3d 716, 724 (5th Cir.) (concluding that a petitioner failed to show prejudice from counsel's deficiency in failing to investigate and offer mitigating evidence where potential mitigating evidence was outweighed by evidence heard by jury at guilt phase of trial), cert. denied, ___ U.S. ___, 118 S. Ct. 361, 139 L. Ed. 2d 281 (1997). Even if Davis's counsel's failure to object to the prosecution's statements on youth was deficient, the result of the trial would not have been different. Because Davis is unable to show prejudice, his first ineffective assistance claim fails.
9. Intentional Versus Deliberate.
Davis claims that his counsel failed adequately to maintain the distinction between an intentional and a deliberate killing, especially by failing to object to the prosecutor's equating the two.
The trial court instructed the jury that to convict Davis of capital murder, it had to find that
*904 the defendant shot Richard Walter Lang with the intention of thereby killing him. Unless you find from the evidence beyond a reasonable doubt that the defendant, on said occasion, specifically intended to kill the said Richard Walter Lang when he shot him, if he did shoot him, you cannot convict him of the offense of capital murder.
Intent was defined: "A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result."
At the punishment phase, the jury had to find that Davis's conduct was deliberate, not merely intentional, to impose death. Lane v. State, 743 S.W.2d 617, 628 (Tex.Crim.App. 1987). To convict Davis of capital murder in the first place, the jury had to find that he acted intentionally; to impose the death sentence, the jury had to find that he acted deliberately. "Deliberate" is commonly understood as narrower than "intentional," yielding a higher standard. It connotes at least a flash of reflection and at most pre-meditation. While "intentional" implies he desired the act and, inferably, its consequences, "deliberate" means he acted on consideration rather than reaction. To support the jury's decision the evidence must have shown that the defendant's killing the victim resulted from a conscious decision to cause the death of the victim a conscious decision stronger than mere intent but weaker than premeditation. Lewis v. State, 911 S.W.2d 1, 6 (Tex.Crim.App.1995).
Texas courts have "properly declined to assume a legislative function and define `deliberate', and instead relied on the `ordinary meaning' of the term as a juror individually knows it." Lane, 743 S.W.2d at 628. Terms like "deliberately," "probability," "criminal acts of violence," and "continuing threat to society" have a common-sense core of meaning that juries are capable of understanding. See Tuilaepa v. California, 512 U.S. 967, 973, 114 S. Ct. 2630, 2636, 129 L. Ed. 2d 750 (1994).
A. Deficiency.
In his closing argument, the prosecutor told the jury that the two standards were the same and that anything other than an accidental killing was deliberate; he told the jury that they had essentially found deliberation when they convicted Davis. Davis's lawyer did not object. Davis says his lawyer did not ask him why he shot Lang or to recall Lang's provocation or Davis's reaction. Davis complains that his lawyer did not correct Davis's equating the two standards when he was cross-examined and, he says, seemed to confuse them himself in his closing. On closing, Davis claims, his lawyer did not try to get the negative finding on deliberate or argue that deliberate could mean less than premeditation.
Davis's testimony that he did not intend to shoot Lang negates deliberation, if it persuaded the jury; it did not. Still, to the extent that the jury was left with the impression that the two standards were the same, Davis's counsel quite clearly drew the distinction between them. For Davis, Dunn said:
We just say that he did not go into the Red Wing store to murder and kill the witnesses so they would not be able to appear again before you. He went in there, and from his position in life remember a brave man, Mr. Lang, came toward him, causing him to panic in a situation he had not dreamed could exist, into which he reacted horribly, wrongly and shot him. It wasn't. He could have shot again. He could have shot the other man. That doesn't excuse it. I'm not trying to say that. I'm merely trying to say that perhaps that point might be separated from the death penalty by the razor's edge because he did not intend to kill. He went in there to rob.
(Tr. at 1129).
He is not like the organized criminal who plans in advance to murder his victim. It was the furthest thing from his mind.
(Tr. at 1133).
Also for Davis, Pletcher drew the distinction between deliberation and intent about as well as it can be drawn:
You know when you were asked yesterday about the innocence or guilt of William Prince Davis the Court asked you, as he must in accordance with the will of the State, "Was this an intentional act?" And *905 there was no doubt it was an intentional act, and you so found as you should have so found.
Now for some reason, again because of the will of the State, you are asked a different question. You are asked, "Was the conduct deliberate? Was the conduct deliberately done with the reasonable expectation that death would occur?"
Now, what is the difference between intentional and deliberate? ... But what is deliberate?
When Mr. Sparks questioned you, many of you if not all of you, he talked about synonymous words, synonyms as he put it. What is the synonym for deliberate? Considered. Advised. Premeditated. Designed. Studied. Deliberate also indicates full and unhurried awareness. As he talked about deliberate conduct, I sought to find out what that word meant, and these are meanings of that word.
Why do you suppose that when you go back to do your duty it is called deliberation? It is because what you do must be deliberate. You must design and study and consider and advise. You must premediate before what you do is considered a deliberate act....
Now that very same question is asked about his conduct. And please do not in any way think that Tom Dunn and I in our responsibility here are attempting in any way to detract from the dreadfulness, from the enormity of the wrongness that William Prince Davis did. He deliberately by plan, by design, by premeditation, by advice, and through considered judgment robbed that store. And what he did in pulling the trigger that struck down Mr. Lang is in no way and can never be in any manner justified, nor has it ever been claimed to have been justified. It was a dastardly, treacherous, evil act. But was it deliberate? Was it planned? Was it premeditated? Was it designed? Was it reasoned? Was it, did it indicate full and unhurried awareness?
That's a question you must answer, and you as honorable and intelligent men and women must answer that question either yes or no.
(Tr. at 1137-40). Davis's petition admits that counsel made some argument along these lines. (Davis's Petition at 25).
Davis's lawyers effectively distinguished the two standards. While failing to object to the prosecutor's description of the standard is technically deficient, it was not an indicium of incompetence in the trial as a whole considering the tactical advantages and disadvantages probably resulting from an objection.
B. Prejudice.
Assuming that the lack of an objection was deficient, however, it did not in reasonable probability change the outcome. Had Davis's counsel objected to the prosecutor's argument, the trial court probably would have sustained it, struck it, and instructed the jury to disregard it. The trial court did not do even that much during Pletcher's closing argument, when the prosecutor objected to Pletcher's characterization of threat to society:
Mr. Sparks: Object to that, Your Honor. It's a misstatement of the law. The jury is to answer the question based upon the existing facts and is to answer the question as to the present day, today.
The Court: All right.
(Tr. at 1141). Even with an objection, the sentence would not have changed. The court instructed the jury that it had to find that Davis acted deliberately, and Davis's lawyers thoroughly articulated the difference between intentional and deliberate. No fact suggests that the jury would have sentenced Davis differently if it had heard the court say, "Disregard the last argument."
Two years after the appeal in this case, a Texas court found a series of errors about the distinction to vitiate the justice of a capital sentence. In that case the prosecutor, using hypothetical questions on voir dire, equated deliberate and intentional. Lane v. State, 743 S.W.2d 617 (Tex.Crim.App.1987). The trial court repeatedly prevented the defense lawyer from asking prospective jurors questions about the two standards. The defense had to use all of its peremptory challenges, and an extra one, to strike jurors *906 with whom the prosecution had confused the standards. The defense then ran out of challenges, and the last juror seated was a person who had admitted to being confused by the two standards. While the Court of Criminal Appeals correctly declined to "condone an attempt by a State's attorney to mislead a juror into believing the definition of deliberate conduct is nothing more than a second finding of intentional conduct," in this case it did not see the same pattern of abuse or it would have said so when it considered Davis's contentions the three times it reviewed his treatment. Id. at 628.
Among the facts that distinguish Davis's case from Lane's is that the trial court here did not block the defense's examination of the venire about the distinction. The prosecution in Lane's case confused the standards, but the last seated juror actually made statements during voir dire that indicated he did not properly understand the difference between intentional and deliberate. In this case, while the prosecution made arguments falsely equating the standards, there is no indication that the jurors were confused by the argument. There are no juror statements indicating confusion, and the defense countered the prosecution's argument. Nothing in this case indicates that a juror actually believed that a "less rigid standard of proof was required." Id. at 628.
The defects Davis lists had no reasonable probability of causing the jury to have sentenced Davis differently than it did.
10. Evidence of Reaction.
Finally, Davis complains of his counsel's failure to introduce evidence that might have suggested that Davis did not deliberately kill Lang. During the guilt phase of the trial, Davis attempted to offer the testimony of Officer Robert Deloney. During Davis's oral confession, shortly after the killing, he told Deloney, "I had to shoot the man. He was going to take the gun away from me." Davis says this and other evidence corroborates his story that he was reacting to Lang's moving toward him. The court excluded it as irrelevant to guilt.
Davis now argues that his counsel should have introduced that testimony during the punishment phase, that his failure to do it was incompetence, that the testimony would have been admitted, and that it would have made a difference by demonstrating that Davis did not deliberate.
According to Davis, Deloney's testimony was the best evidence of non-deliberation because Davis's statement to Deloney was near the time of the killing and contemporaneous with his confession, making it more credible than Davis's testimony to the same effect at trial.
Assuming that failing to introduce the testimony was error, the absence of that particular testimony has no reasonable probability of changing the result because the jury already had similar evidence that it considered and rejected. The essence of Davis's statement to Officer Deloney was before the jury. Davis took the stand. He told the jury that he did not mean to kill Lang. Davis testified:
I'd like to say to the Lang family that I'm sorry. I never really intended for what happened to happen.
(Tr. at 1094).
Q. [The gun] was already pointed at him, wasn't it?
A. Yeah. After he jumped in front of it.
(Tr. at 1105-06).
Q. Well, how do you go about shooting somebody if you had never shot a gun before?
A. Well, I didn't intend to shoot him. Like I said, really he scared me just as much as it probably scared everybody in that room.
Q. Well, there's not any question that you and Murphy and Darrow had planned and thought out and deliberated over robbing that Red Wing Ice Cream store, is there? You talked that over and planned it?
A. Yes.
Q. Did you plan or talk over the shooting of anybody?
A. No.
(Tr. at 1095).
Q. So you deliberately pulled the trigger on that gun; is that true?
A. I ain't going to say deliberately.
*907 Q. You're not going to say deliberately?
A. Yeah.
Q. Why not?
A. Because like I said, I never intended to kill Mr. Lang, although it was my hand that shot the gun.
Q. At the time you pulled the trigger, you did.
A. No, I didn't.
Q. What did you think was going to happen?
A. What did I think was going to happen?
Q. Yeah.
A. Well, I thought it was going to hit him in the stomach.
Q. And you think he wouldn't be dead if you had shot him with a .32 caliber pistol in the stomach?
A. Right. Really, I panicked, if you just really want to know.
(Tr. at 1108-1109).
Davis essentially told the jury in person the substance of what he told Deloney that he did not deliberately shoot Lang. Additionally, the state's first exhibit was Davis's written confession, and it said, "I stood in the doorway and said `Don't nobody move.' As I was saying this a man was moving toward me and I shot him one time." See Westley v. Johnson, 83 F.3d 714, 722 (5th Cir.1996) (concluding that counsel's failure to review transcripts from a co-defendant's trial was deficient but not harmful because counsel had elicited most of the same exculpatory testimony at his client's trial and that benefit from using the full record from the other trial would have been "minimal" or "marginal," which is insufficient "to undermine confidence in the jury's verdict"), cert. denied, ___ U.S. ___, 117 S. Ct. 773, 136 L. Ed. 2d 718 (1997).
Again, Davis cannot show that in reasonable probability the result of the trial would have been different. There was ample physical and oral evidence of Davis's position from which the jury could find deliberation.
11. Capital Punishment.
The government's use of the death penalty is both popular and controversial. Both the popularity and controversy are misguided. Aside from vengeful retribution and insipid moralism, no rule can be sound jurisprudentially if it generates a complex, convoluted, lengthy, and expensive process.
The death penalty has three principal defects. First, the state probably ought not be allowed to do things it cannot undo because it is at least as error prone as other human organizations. Second, the state spends scarce resources on capital punishment that are badly needed elsewhere; Texas spends about $20 million a year more in accomplishing death sentences than it would cost to convict and maintain them for life without parole. See Dan Grothaus, HOUSTON POST, Dec. 7, 1986. In this case, Davis has been on death row for twenty years. Third, the death penalty attracts the attention of law enforcement, prosecution, courts, and the public to gruesome, sensational, but largely irrational, episodic murders, deflecting that attention from the routine crimes that actually destroy the quality of life generally.
Beyond those practical factors, reasonable people question whether the infliction of death does not undermine our society's humanity much more than it deters the beasts among us. It is bad policy, and it may be immoral, but it is constitutional.
12. Conclusion.
Davis's petition is time-barred. Even if it were not, he had effective assistance of counsel. No doubt, Davis's counsel could have done some things better, but imperfect is not ineffective. Even if Davis's counsel were deficient, there is simply no indication, much less a reasonable probability, that the deficiency made a difference in the sentence. "Though the penalty is great and our responsibility heavy, our duty is clear." Rosenberg v. United States, 346 U.S. 273, 296, 73 S. Ct. 1152, 1164, 97 L. Ed. 1607 (1953) (Clark, J.). Davis's petition for a writ of habeas corpus will be denied.
Final Judgment
1. William Prince Davis's petition for writ of habeas corpus (# 1) is denied.
2. William Prince Davis's motion to stay his execution (# 3) is denied.
*908 3. William Prince Davis's anticipated motion to stay the execution until an anticipated appeal is heard is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2593069/ | 805 F. Supp. 191 (1992)
Charles E. WASHINGTON, Plaintiff,
v.
James WHITE, James McElwee, New York State Executive Branch Division of Parole, Defendants.
No. 90 Civ. 3396(JES).
United States District Court, S.D. New York.
October 27, 1992.
*192 Charles Washington, pro se.
Robert Abrams, Atty. Gen., New York City (Charles C. Davis, Louise Herman, Asst. Attys. Gen., of counsel), for defendant.
MEMORANDUM OPINION AND ORDER
SPRIZZO, District Judge.
Defendants in the above-captioned action move for summary judgment pursuant to Fed.R.Civ.P. 56(b). For the reasons that follow, that motion is granted.
BACKGROUND
Plaintiff, a former inmate in the Mid-Orange Correctional Facility,[1] brings this action pursuant to 42 U.S.C. § 1983 against parole officers James White and James McElwee, and the New York State Executive Branch Division of Parole alleging a violation of his due process rights during his appearances before the Executive Department Division of Parole in April and June of 1990. Plaintiff's first alleged due process violation concerns allegations that parole officers White and McElwee conspired and submitted insufficient, false, and misleading information on his Parole Summary report which had an adverse effect on his parole determination.[2] Plaintiff also asserts that he was denied his right to parole because as part of his participation in the "Prepared Release Program" ("PREP"), a program designed to give special rehabilitation to selected inmates to improve their chances for parole, he signed a contract which guaranteed him release at his first parole review meeting, but due to budget constraints this program was terminated prior to his first review. Plaintiff seeks damages from each of the individual defendants for the alleged violation of his due process rights.[3]
DISCUSSION
A prisoner is not entitled to the protections of due process merely because a state provides for the possibility of parole. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Any liberty interest warranting due process *193 protection must, therefore, necessarily have its origin in a state statutory scheme which creates an entitlement to parole. Greenholtz, 442 U.S. at 11-12, 99 S. Ct. at 2106. Since New York's parole provisions do not create an entitlement to parole, Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir.1979), any alleged unfairness in plaintiff's parole hearing does not and cannot afford a predicate for relief under Section 1983, Russo v. New York State Board of Parole, 50 N.Y.2d 69, 75, 427 N.Y.S.2d 982, 405 N.E.2d 225 (1980). See Brandon v. District of Columbia Board of Parole, 823 F.2d 644 (D.C.Cir.1987). See, e.g., Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir.1985).
Moreover, plaintiff's claimed injury due to the cancellation of PREP is also not actionable under Section 1983.[4] Even assuming arguendo that the alleged contract guaranteed release and thus created a constitutionally protected property interest, plaintiff received an adequate state court remedy, i.e., a breach of contract cause of action. See, e.g., S & D Maintenance Co. v. Goldin, 844 F.2d 962, 966 (2d Cir.1988) (even if all public contracts warranted due process protection, in most circumstances post-deprivation state court remedies would provide all the process that is due).
CONCLUSION
Accordingly, for the reasons given above, defendants' motion for summary judgment shall be and hereby is granted. The Clerk of the Court is directed to close the above-captioned action.
It is SO ORDERED.
NOTES
[1] Plaintiff was released on parole on July 3, 1992.
[2] Plaintiff additionally alleges a due process violation because he claims to have overheard Maria Buchanon, who was scheduled to adjudicate the April 1990 hearing, make slanderous remarks about him thus denying him a fair and unbiased hearing. However, because of these alleged remarks, plaintiff refused to participate in the April hearing. A new hearing was held on June 13, 1990, and a different parole officer presided over that hearing and denied plaintiff parole. Thus, even assuming that a due process right exists, any procedural violation resulting from Buchanon's remarks was cured by the rescheduling of the hearing. See, e.g., Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir.1992). Moreover, as discussed below, allegations of an unfair parole hearing do not give rise to a claim of due process.
[3] At the commencement of this action, plaintiff also sought immediate release on parole, a request which is now moot since, as noted above, plaintiff is currently on parole. Moreover, plaintiff was not entitled to that relief under Section 1983 because where a plaintiff attacks the constitutionality of his physical confinement and the relief he seeks is immediate release, his sole remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973).
[4] Plaintiff's testimony as to the language of this alleged contract, which plaintiff was unable to produce because he claims it was stolen out of his prison locker, is inconsistent and varies from saying that the contract "guaranteed" he would be released to that the contract stated that he would be given "consideration" for release. See Deposition of Charles Washington at 13-14, 19. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1485601/ | 944 F. Supp. 35 (1996)
John TIERNAN, Plaintiff,
v.
James BARRESI, Defendant, Third Party Plaintiff,
v.
Robert TIERNAN and Cape Breton Incinerators International, Ltd., Third Party Defendants.
Civ. No. 96-0042-B.
United States District Court, D. Maine.
September 11, 1996.
Peter J. Rubin, Berstein, Shur, Sawyer & Nelson, Portland, ME, for Plaintiff and Third Party Defendants.
Richard D. Solman, Solman & Hunter, P.A., Caribou, ME, Ian Crawford, Todd & Weld, Boston, MA, for Defendant, Third Party Plaintiff.
ORDER AND MEMORANDUM OF DECISION
BRODY, District Judge.
This declaratory judgment suit was filed by Plaintiff, John Tiernan, owner and sole stockholder of Matane Corporation (hereinafter "Matane"), against Defendant and Third Party Plaintiff James Barresi (hereinafter "Barresi"). At issue is whether or not an option to purchase shares of Matane was granted to Barresi. Plaintiff seeks a declaratory judgment that, contrary to Barresi's allegation, such an option was never granted. Barresi filed a Counterclaim against John Tiernan alleging breach of the alleged option contract (Count 1); breach of an agreement to undertake no action which would adversely affect Matane's business and breach of a related agreement not to violate a commitment of good faith and fair dealing toward Barresi (Count 2); and breach of Plaintiff's fiduciary duty toward the corporation (Count 3).
Barresi also filed a Third Party Complaint pursuant to Rule 14 of the Federal Rules of Civil Procedure against Third Party Defendants Robert Tiernan and his company Cape *36 Breton Incinerators International, Ltd (hereinafter "CBIIL"). The Third Party Complaint alleges that Robert Tiernan breached the fiduciary duty which he owes to Matane as one of its directors (Count 1) and requests that the Court enjoin CBIIL from bidding on a project in Canada and, also, enjoin CBIIL from using any patents or technology acquired from Matane (Count 2).
The Court addresses the following three currently pending motions. In the first motion, John Tiernan moves for dismissal of Barresi's claim that Plaintiff violated his fiduciary duty to Matane (Count 3 of the Counterclaim). The second motion, filed by Third Party Defendants Robert Tiernan and CBIIL, requests dismissal of the Third Party Complaint. The third is a motion by Barresi to amend his Counterclaim and Third Party Complaint. The Court hereby dismisses the breach of fiduciary duty claims (Count 3 of the Counterclaim and Count 1 of the Third Party Complaint) and grants Barresi's Motion to Amend.
I. Background
This controversy revolves around certain patent rights held by Matane, a Maine corporation, with a principal place of business in Castle Hill, Maine. Matane holds patent rights for the design of incinerators. Plaintiff, John Tiernan, filed this federal declaratory judgment action against Defendant, Barresi, based on diversity jurisdiction. In his complaint, Plaintiff claims that on October 18, 1995, Barresi and John Tiernan met regarding the future of Matane (hereinafter designated as the "October meeting"). During this meeting, the parties discussed the potential sale of all Matane stock to Barresi. Plaintiff claims that this meeting concluded without a contractual agreement to sell the corporation. Plaintiff subsequently sent letters to Barresi setting forth terms for the proposed stock transfer from Plaintiff to Barresi. Upon receiving these letters, Barresi accused John Tiernan of attempting to renege on the oral agreement which they purportedly reached in the October meeting. John Tiernan sent further correspondence to Barresi stating that no such agreement existed and, further, that Matane's patent rights would be conveyed to a third party, with a licence to use the patent rights conveyed back to Matane.
John Tiernan claims that no meeting of the minds occurred at the October meeting, there was no discussion of any consideration offered by Barresi in exchange for the option to purchase the stock in Matane, and, hence, no contract exists between the parties.
In his Counterclaim and Third Party Complaint, Barresi asserts that a binding contract was reached between the parties at the October meeting. Barresi claims that, since 1991, he has, pursuant to various agreements with John Tiernan, provided funding to Matane while at the same time serving as the company's executive director. Barresi states that he provided Matane with over 400,000 dollars, which allowed the corporation to continue its business. Additionally, Barresi claims that, during the October meeting, John Tiernan offered to convey to Barresi the rights to all patents owned by Matane as well as all other assets and stock in the corporation in return for payment by Barresi of the outstanding notes, plus interest, owed by Matane to John Tiernan. Barresi states that he also agreed to continue his operation and further funding of Matane.
Barresi further asserts that during 1994, Robert Tiernan, John Tiernan's son, helped form CBIIL, a Canadian corporation, and became a principal in that corporation. Barresi states that Robert Tiernan has been on Matane's board of directors since 1991 and that John and Robert Tiernan have worked in concert in an attempt to transfer Matane's patent rights to CBIIL. On November 29, 1995, Barresi was first informed about John Tiernan's attempt to transfer Matane's patents to CBIIL. Barresi alleges that Matane's U.S. and Canadian incinerator patents are now, or will soon be, transferred to CBIIL and that CBIIL will use this technology to bid on a large incineration project in Nova Scotia.
Pursuant to the alleged agreement reached at the October meeting, Barresi offered to buy Matane on April 18, 1996. John Tiernan rejected the offer, on the grounds that no option contract existed between the parties. Barresi claims that if CBIIL, a competitor of Matane, is allowed to obtain Matane's patent *37 rights and technology, the value of Matane will be considerably decreased, and requests legal relief accordingly.
II. Motion to Dismiss
The Court will grant a motion to dismiss in the absence of a genuine issue of material fact, when the moving party is entitled to a judgment as a matter of law. The Court will accept all well-pled facts asserted by Defendant as true, and will draw all reasonable inferences therefrom in Defendant's favor. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 276, 96 S. Ct. 2574, 2576, 49 L. Ed. 2d 493 (1976); and The Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). Only if the complaint in question presents no set of facts justifying recovery will the Court grant a motion to dismiss. See, e.g., The Dartmouth Review, 889 F.2d at 16 (citing Conley v. Gibson, 355 U.S. 41, 45-48, 78 S. Ct. 99, 101-03, 2 L. Ed. 2d 80 (1957)). The Court will, therefore, assume all facts in the light most favorable to Barresi.
III. Breach of Fiduciary Duty
In Count 3 of the Counterclaim and Count 2 of the Third Party Complaint, Barresi claims that both John and Robert Tiernan breached their fiduciary duty of good faith and fair dealing owed to Matane as directors of the corporation. This breach allegedly arises from participation by both Matane directors in the formation of CBIIL and in their clandestine attempt to transfer, without consideration, the Matane incinerator patents and technology to a direct competitor. For the purpose of these motions, the Court will accept arguendo Barresi's assertion that this transfer and all related transactions between Matane and CBIIL were undertaken in bad faith by the colluding Tiernan father and son, with full knowledge that their actions would harm both the corporation and Barresi. The issue is to whom do corporate directors owe a fiduciary duty? In this case, the Court must decide whether Barresi has standing to bring a cause of action against John and Robert Tiernan for their mismanagement, even though he is not a stockholder in the corporation.
The Maine Business Corporation Act states that:
... directors and officers of a corporation shall exercise their powers and discharge their duties in good faith with a view to the interests of the corporation and of the shareholders and with that degree of diligence, care and skill which ordinarily prudent men would exercise under similar circumstances in like positions.
13-A M.R.S.A. § 716 (Duty of Directors and Officers). This provision expressly creates a duty on the part of the directors and officers of a corporation to act in good faith toward the corporation and the shareholders. Barresi can be characterized as a creditor, an employee, and the purported holder of an option contract to purchase the shares of the corporation. All parties to this action agree that there is no Maine statutory or case law which indicates that a person falling within any of these categories has a cause of action against corporate directors for breach of their fiduciary duty to the corporation.[1] Many jurisdictions have specifically determined that such a cause of action does not run to parties such as creditors. See, e.g., In re International Resorts, Inc., 46 B.R. 405, 416 (N.D.Ala.1984) ("Such an act or transfer may be voidable by the corporation and its stockholders but not by a creditor. This is because corporate directors, officers and agents owe a fiduciary duty to the corporation but not to the creditors."). Devereux v. Berger, 264 Md. 20, 31, 284 A.2d 605, 611 (1971). It is clear under Maine law that a party who is not a shareholder has no standing to litigate a breach of fiduciary duty claim against corporate directors.
A lengthy discussion of the merits and ramifications of expanding the fiduciary duty owed by corporate directors and officers is unnecessary here. This Court declines to create or allow for the first time a cause of action which would expand the law beyond the clear meaning of the statute. Such action *38 is properly within the purview of the legislative not the judicial branch of government. Barresi, who is not a shareholder of Matane, has no standing to claim a breach of the fiduciary duty of Matane's directors, John and Robert Tiernan.
In Barresi's Opposition to the Motion to Dismiss, Defendant asserts that he is the de facto stockholder of Matane. For all of the reasons discussed above, the Court holds that a "de facto stockholder" has no standing to sue corporate officers and directors for breach of their fiduciary duty. A de facto stockholder does not obtain standing by reason of its claimed de facto status.
Count 3 of the Counterclaim and Count I of the Third Party Complaint are hereby dismissed.
IV. Motion to Amend
Barresi's Motion to Amend his Counterclaim and Third Party Complaint is granted. Leave to amend under Rule 15(a) of the Federal Rules of Civil Procedure is liberally granted in the absence of any showing of undue delay or bad faith on the part of the movant. See, e.g., Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962); and Benitez-Allende v. Alcan Aluminio Do Brasil, S.A., 857 F.2d 26, 36 (1st Cir.1988), cert. denied 489 U.S. 1018, 109 S. Ct. 1135, 103 L. Ed. 2d 196 (1989). In this case, the Motion to Amend was filed prior to the expiration of the discovery deadlines or the deadline for filing of all motions. The Court reserves decision on the merits of the claims alleged in the Amended Counterclaim and Third Party Complaint. Following filing of responsive pleadings and appropriate discovery, the Court will address the merits of the remaining claims upon appropriate motion by the parties.
The parties are requested by the Court to agree on and file an Amended Scheduling Order with the Court within 10 days. If no such agreement can be reached, the parties are to initiate a telephone conference with the Court to resolve any scheduling issues.
The issues raised in Third Party Defendants' Motion to Dismiss remain under advisement with the Court pending responsive pleadings and discovery on the issues raised in the Amended Counterclaim and Third Party Complaint.
(1) Plaintiff's Motion to Dismiss Count 3 of Defendants Counterclaim is granted;
(2) Third Party Defendants' Motion to Dismiss Count 1 of Third Party Plaintiff's Third Party Complaint is granted; and
(3) Defendant/Third Party Plaintiff's Motion to Amend is granted.
SO ORDERED.
NOTES
[1] For the purpose of these two motions, the Court assumes that the October meeting did in fact create an agreement between John Tiernan and Barresi as well as the fact that John and Robert Tiernan did breach their fiduciary duty to Matane. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1268718/ | 196 S.E.2d 603 (1973)
18 N.C. App. 269
STATE of North Carolina
v.
Lois Jean WOOTEN.
No. 738SC62.
Court of Appeals of North Carolina.
May 23, 1973.
Certiorari Denied and July 12, 1973.
*604 Atty. Gen. Robert Morgan by William F. O'Connell, Asst. Atty. Gen., for the State.
George F. Taylor, Goldsboro, for defendant appellant.
Certiorari Denied and Appeal Dismissed July 12, 1973.
BRITT, Judge.
Defendant assigns as error the admission of testimony by the nurse and treating physician, particularly their testimony with respect to the matchbox and its contents. She contends that the evidence was inadmissible (1) by virtue of G.S. § 8-53 and (2) for the reason that it resulted from an illegal search and seizure.
We consider first the evidence provided by the treating physician in the light of G.S. § 8-53 which provides:
"No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that the court, either at the trial or prior thereto, may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice."
The trial court ruled that "in the interest of justice that Doctor Nation be required to answer" the questions with regard to defendant whom he saw and treated on 28 October 1971 in the emergency room of the Wayne Memorial Hospital. We hold that the ruling of the trial court substantially complies with the proviso of the statute, rendering the evidence provided by the physician admissible as far as G.S. § 8-53 is concerned.
As to the evidence provided by the nurse, it has been held that G.S. § 8-53 applies to nurses when they are assisting or acting under the direction of a physician or surgeon, if the physician or surgeon at the time is subject to the statute. Sims v. Insurance Company, 257 N.C. 32, 125 S.E.2d 326 (1962); State v. Bryant, 5 N.C.App. 21, 167 S.E.2d 841 (1969). The record reveals no finding by the trial court that the evidence provided by the nurse was necessary to a proper administration of justice. Assuming, arguendo, that the court erred in admitting the nurse's evidence without the finding set out in the proviso to the statute, we hold that the error was not prejudicial since the physician provided substantially the same evidence.
Next, we consider the question whether the evidence provided by the treating physician and the nurse resulted from an illegal search and seizure and was, therefore, inadmissible.
It is well settled, in both state and federal courts, that evidence obtained by unreasonable search and seizure is inadmissible. State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970). But, what is a search that comes within this principle of law? In *605 State v. Reams, supra, the court, quoting from C.J.S. said:
"The term `search', as applied to searches and seizures, is an examination of a man's house or other buildings or premises, or of his person, with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense with which he is charged. As used in this connection the term implies some exploratory investigation, or an invasion, and quest, a looking for or seeking out. * * *"
In Duffield v. Peyton, 209 Va. 178, 162 S.E.2d 915, the Supreme Court of Appeals of Virginia said: "`* * * A search ordinarily implies, a quest by an officer of the law, a prying into hidden places for that which is concealed.' State v. Coolidge, 106 N.H. 186, 191, 208 A.2d 322, 326." In State v. Colson, 274 N.C. 295, 306, 163 S.E.2d 376, 384 (1968), the court said: "Evidence is not rendered incompetent under [G.S. § 15-27] unless it was obtained (1) in the course of a search, (2) under conditions requiring a search warrant, and (3) without a legal search warrant."
We hold that in the case at bar there was no "search" of defendant within the purview of G.S. § 15-27 and Constitutional provisions forbidding unreasonable searches. Defendant was not undressed by, or at the direction of, a police officer. The purpose in undressing defendant was not to discover contraband or other illicit property or to obtain evidence to be used against her in the prosecution of a criminal action. On the contrary, she was undressed in order that a physician might determine the cause of her unconsciousness and after determining the cause, administer treatment that would save her life. Finding heroin on her person was incidental to the examination.
We have carefully considered all assignments of error brought forward and argued in defendant's brief but finding them without merit, they are all overruled.
No error.
MORRIS and PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1693550/ | 389 So. 2d 1007 (1979)
Mark ROYER, Appellant,
v.
The STATE of Florida, Appellee.
No. 78-1050.
District Court of Appeal of Florida, Third District.
December 28, 1979.
On Rehearing September 9, 1980.
Rehearing Denied October 21, 1980.
Fine, Jacobson, Block, Goldberg & Semet and Theodore Klein, Miami, for appellant.
Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, J., and CHARLES CARROLL, (Ret.), and EZELL, BOYCE F., Jr., (Ret.), Associate Judges.
CHARLES CARROLL, Associate Judge.
The appellant, Mark Royer, was charged by information with unlawful possession of a controlled substance, cannabis, in an amount greater than five grams, and of the crime of unlawful possession thereof with intent to sell or deliver the substance.
The defendant moved to suppress evidence consisting of 65 lbs. of marijuana found in his possession, on the ground that the search and seizure thereof without a *1008 warrant was unlawful. The court denied the motion on the ground that the defendant freely and voluntarily consented to the search, and on the ground that with the defendant fitting the profile of a drug courier and officers had probable cause to believe his luggage contained contraband, justifying a search.[1]
After denial of his motion to suppress, the defendant withdrew his plea of not guilty and pled nolo contendere, with reservation of right to appeal the order. Adjudication was withheld, and no sentence was imposed. The defendant was placed on probation for two years, with one of the conditions of probation being a requirement that he spend 30 days in jail.[2] The defendant appealed, contending the denial of his motion to suppress was error. We hold no reversible error has been shown, and affirm the judgment.
The facts leading up to the search and seizure of the marijuana were the following. Officers Johnson and Magdalena, of the Dade County Public Safety Department, were plainclothes detectives assigned to the County's Crime Bureau, Narcotics Investigation Section, performing duty at Miami International Airport as members of what was known as the Smuggling Detail, consisting of a sergeant and eight officers, who worked in pairs, on shifts. Said officers had acquired knowledge of a "profile" by which it was possible with a substantial measure of certainty to recognize couriers or carriers of drugs in air travel. Such profile had been arrived at by experiences of narcotics officers with a great number of such persons in main drug distribution centers and the target city destination places.
Miami was a known point from which imported drugs, including marijuana, were transported to other target destination cities, one of which was New York City. It was known that commercial airlines were used for such transport of drugs by such couriers and others. On a certain day, at the Miami International Airport, the above-named officers observed the defendant as he was about to purchase a ticket on an airline. The defendant's appearance and mannerisms, his luggage and the way he dealt with it, and his means of obtaining his ticket, etc., as observed by the officers were such as to fit the profile, the details and nature of which we purposely do not here state. As disclosed through the testimony of Officer Johnson, the defendant was observed to fit the profile of a drug courier.
The defendant checked his two suitcases, placing identification labels thereon bearing the name "Holt", but without stating his address or telephone number in the spaces provided therefor on the labels. The officers noted the name which the defendant placed on the suitcases.
As the defendant was proceeding to enter the concourse leading to the boarding area, after having obtained his ticket and checked his suitcases, the officers approached him, identified themselves as police officers, and asked him if he had time to talk with them, which he said he did. There followed a series of requests by the *1009 officers, to none of which the defendant objected, and to each of which the defendant assented. Those consisted of his initial consent to talk to the officers, his production upon request of his ticket (which was to New York City), and his driver's license for identification (which showed his name to be Mark Royer, not Holt which was the name on the ticket); his consent to move with them out of the main room into a vacant side room for further conversation; his consent to the officer's request that the suitcases be opened (after Johnson had retrieved the suitcases). When the officers requested his consent to the opening of the suitcases, the defendant produced a key from his pocket and unlocked one of the cases. He explained that he did not know the combination of the combination lock on the other suitcase, and upon request gave his consent to the opening of the other case by the officers, which they did with the aid of a screwdriver. The search revealed the suitcases contained 65 pounds of marijuana. The testimony given by Officer Johnson, which the court chose to believe, was sufficient to establish, as fact, the consent of the defendant to the several requests of the officers. In his testimony the defendant did not state that he had objected to, or that he had not consented to any of such requests of the officers.[3]
The defendant testified that during the time he was in the presence of the officers he was not told that he was free to leave; and as to each of the steps or requests to which the defendant consented, he testified (1) he was not told that he did not have to consent, and (2) as to each of such consents, when asked by his lawyer why he consented, he gave the same answer, viz., "They were police officers and I thought I had to."
On appeal the defendant does not argue that the court committed error by finding, on the totality of the evidence, that he did so consent, but contends the court's finding of consent was error because he was not told he could refuse consent, and that because such consents were given to police officers as a matter of law it could not be held that his consents were free and voluntary. We reject those contentions as being without merit in this case.
The ruling of the trial court denying the motion to suppress comes here with the support of a presumption of its correctness; and in testing it, on review of the order on appeal, the evidence and the inferences and intendments reasonably deducible therefrom are to be viewed in the light most favorable to sustain the ruling. Rodriquez v. State, 189 So. 2d 656, 610 (Fla. 3d DCA 1966). In this case there is little need to summon to our aid that presumption and that rule. Presented with the totality of the circumstances, the trial court found the consent to the search was made freely and voluntarily. That finding of consent by the court is supported by clear and convincing evidence, and defendant does not contend the evidence, as such, showed otherwise. If we were so inclined, which we are not, to substitute our judgment for that of the trial court on its finding of free and voluntary consent, by re-evaluation of the testimony and evidence from the record before us, it would not be proper to do so. Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976); Westerman v. Shell's City, Inc., 265 So. 2d 43 (Fla. 1972). A warrantless search which is made pursuant to consent does not offend the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
We hold to be unsound the contention of the defendant that the consents he gave in this instance should be disregarded because *1010 prior thereto he was not told he could refuse to consent. The failure of the officers to have advised the defendant that he did not have to consent to any request by them, including request to search the suitcases, did not operate to render involuntary the consents given by the defendant, although that circumstance, as shown in the evidence, was a factor to be considered by the trial court in assessing the totality of the circumstances on the question of voluntariness, in ruling on the motion to suppress. Schneckloth v. Bustamonte, supra; State v. Spanierman, 267 So. 2d 102 (Fla.2d DCA 1972); State v. Custer, 251 So. 2d 287 (Fla. 2d DCA 1971); Taylor v. State, 355 So. 2d 180, 185 (Fla. 3d DCA 1978). The absence of such advance advice to the defendant was emphasized in the testimony of the defendant, thereby acquainting the court with that circumstance. In holding that the defendant's consent, otherwise free and voluntary, was not thereby rendered involuntary, the trial court was not in error. Taylor v. State, supra [350 So.2d at 185].
When the defendant was talking to the officers voluntarily, he had not been arrested. The fact that at their request he voluntarily went with the officers into a side room where they continued to talk with him and where he remained while his suitcases were retrieved and opened with his permission, did not amount to being in custody so as to have required the giving of Miranda warnings at that time. Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); Barfield v. Alabama, 552 F.2d 1114 (5th Cir.1977). The case of United States v. McCain, 556 F.2d 253 (5th Cir.1977), is distinguishable on the facts. Consent can validate a warrantless search despite lack of warning.[4]
On the question of whether the defendant's consent to the search, found by the trial court to have been freely and voluntarily made, should be held on appeal to be involuntary because it was made to and in the presence of the police officers, we hold that it should not.[5] A consent to a search, which is given to police officers can be voluntary where not the product of duress or coercion by the officers, although a consent to a search which is found to be the product of duress or coercion, express or implied, of the officers, is not a voluntary consent. Therefore, the question of whether a consent to a search was "voluntary" or was the product of duress or coercion is one of fact to be determined from the totality of all the circumstances. See State v. Othen, 300 So. 2d 732, 733 (Fla. 2d DCA 1974), which quotes at length on this subject from the opinion of the Supreme Court of the United States in Schneckloth v. Bustamonte, supra.
Here there was no coercive action by the officers. There was no use of force. They did not touch him, or display any weapon, or make any demands. There was no show of force other than the fact, as revealed to the defendant, that Johnson and Magdalena were police officers. The statement to the defendant by one of the officers, when requesting his consent to the opening of the suitcases, that they had reason to believe the cases contained drugs or contraband was not a threat, but rather an explanation of why they were requesting consent to search the cases. The requests which the officers made of the defendant were made politely, and the defendant so testified.
Here each step taken by the officers, to and including the opening of the suitcases, was upon consent given after polite request. In that respect, this case differs from Taylor v. State, supra, 355 So. 2d 180 (Fla. 3d DCA 1978), where it was held that the trial court had improperly denied a motion to suppress contraband evidence found on a search of a boat when the consent to search, *1011 upon which the trial court had relied, was obtained by officers after they had begun an unlawful search of the boat. In Taylor, the court said:
"The central question presented for review is whether a free and voluntary consent to conduct a warrantless search of a boat may be obtained by a law enforcement officer from the boat's owner after such officer has begun an admittedly unlawful search of the boat. We hold that, absent a clear and convincing showing of an unequivocal disavowal or break from the prior illegal search sufficient to dissipate the taint of the prior illegality, no such free and voluntary consent can be given as it is tainted by the prior illegal search. As such, any search conducted pursuant to such coerced consent is unreasonable within the meaning of the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 12, of the Florida Constitution, and the fruits of such a search are inadmissible in evidence."
In cases of this kind, as said in Schneckloth v. Bustamonte, supra, "two competing concerns must be accommodated in determining the meaning of a `voluntary' consent the legitimate need for such searches and the equally important requirement of assuring the absence of coercion." In this case, on weighing those competing concerns, the balance was properly found to tilt in favor of finding voluntary consent.
Accordingly, we affirm the order denying the defendant's motion to suppress as evidence the contraband the search revealed, on the ground, as found by the court, of defendant's consent to the search.
In so ruling, we are following a recent decision of this court upholding a warrantless search based on consent in a substantially similar fact situation. See Myles v. State, 374 So. 2d 83 (Fla. 3d DCA 1979). In conflict with Myles (and now in conflict with the decision in the present case) is the decision of this court rendered after Myles, in which the Myles case was not cited or discussed. See State v. Frost, 374 So. 2d 593 (Fla. 3d DCA 1979).
In Frost the court held the consented-to search was invalid on the theory that the period during which the officers were obtaining the person's identity and his consent was a period of unlawful detention, vitiating the consent to the search. That view in Frost appears to be predicated on an assumption that probable cause which the officers had to believe the person carried contraband drugs would not entitle arrest without a warrant. To the contrary, the view of the majority in this case is that although the officers, when having probable cause to believe the person about to depart was transporting drug contraband, did not make an arrest prior to the (consent) search, they were lawfully entitled to have arrested the person had they chosen to do so.[6]
Basically the conflict between Myles and this case, on the one hand, and Frost, on the other hand, is a difference of opinion as to the effect of a recognized profile of a drug carrier, that is, whether such profile, which gives trained officers probable cause to believe that a person about to depart in air *1012 transit is transporting drug contraband in his luggage, can or cannot be the basis for effective action by the officers absent a warrant.
The rationale of the ruling in this case is that when trained officers spot a departing air travel passenger who with his luggage fits the profile of a drug courier or carrier, giving them probable cause to believe the person is transporting drug contraband, thereby the officers will have probable cause to arrest the person without a warrant in the obvious exigency, and, a fortiori, to search his luggage if he gives consent thereto; and further, as explained below, would be entitled to search the person's luggage even without his consent, in the exigency created by his impending departure therewith.
On the other hand, if we should accept the view that such trained officers, having probable cause to believe a departing person is carrying drug contraband cannot ask his identity and permission to search his luggage without thereby effecting an illegal arrest, then the officers, upon spotting a profile drug carrier would be relegated to stand idly by and watch the passenger and his luggaged contraband depart unimpeded.
We regard the question on which such conflict exists as to the validity of a consent search in such circumstances, to be one of legal and public importance, the ultimate determination of which either will promote the effectiveness or increase the ineffectiveness of law enforcement against smuggling or transportation of drugs through and out of the Miami International Airport by persons who match the profile used to spot drug carrying airline passengers.
That brings us to consideration of the second ground upon which the trial court denied the defendant's motion to suppress. The substance of that separate ground was that luggage which is in air transit, of one who fits the profile of a drug courier, because of the exigent circumstance that it is about to depart in transit can be searched without obtaining a warrant and without the owner's consent, by officers who have probable cause to believe it contains contraband; in this era of drug smuggling, as it was held to be permissible in the prohibition era to stop and search an automobile without warrant or consent, by officers who had probable cause to believe the automobile contained contraband liquor. See Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1926).[7] We agree with the trial *1013 court, and affirm also on that separate ground.
In United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), the decision that because of an owner's expectation of privacy as to the contents of his luggage, probable cause of officers to believe that it contained contraband drug would not authorize a warrantless search of luggage, as it would of an automobile, was a holding made with reference to luggage which is not immediately associated with the passenger person, and which is not subject to any exigency to support an immediate search.
From the opinion in Chadwick it is clear that the Court did not foreclose warrantless searches of luggage that is immediately associated with the passenger person and which have the support of an exigency creating a need for immediate search. Thus, in Chadwick, the Court said:
"Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency. Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority. Respondents were therefore entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded." (Emphasis added)
For example, if officers stopped an automobile which they had probable cause to believe contained contraband, since they could search the automobile, to the extent of dismantling parts of it, it would be unreasonable to assume that because of the holding in Chadwick, the officers could not search suitcases found in the automobile. Accordingly it has been held that upon stopping and searching an automobile under those circumstances, luggage, including suitcases and footlockers contained therein, can be searched.[8]
In the instant case the defendant's suitcases were immediately associated with him. Until he checked them (upon purchasing his ticket), he had actual possession. When the suitcases were checked and he held the check stub, he was in constructive possession thereof. Moreover, in this case the impending departure of the person with his suitcases constituted an exigency creating need for immediate search.
As noted in Carroll v. United States, supra, by common law and by acts of Congress warrantless searches may be made in many instances. No useful purpose would be served by listing them here. In general they are authorized where their use appears essential for effective law enforcement (Internal *1014 Revenue, Customs, vessels at sea, etc.) and conditions of exigency.[9]
More recently, there is the approved practice of warrantless searches of carry-on luggage of airline passengers. Recognizing that the reason for such searches is to guard against passengers' transporting weapons or explosives which could represent a danger in air travel, it should be noted that such warrantless searches are authorized to be made of the carry-on luggage of all departing passengers indiscriminately, aside from and without any profile or circumstances pointing to a particular person as being one who reasonably could be thought to be carrying such banned objects. The exigency which supports warrantless search of a passenger's carry-on luggage has been held to support the seizure of drug contraband which is found upon such a search of a person's carry-on luggage, with the result that drugs so seized were held to be admissible in evidence on his prosecution for possession of the drugs. See United States v. Skipworth, 482 F.2d 1272 (5th Cir.1973).
We hold, as did the trial judge, that when a person with his luggage is about to depart in air travel, if to trained officers the conduct and the appearance of the person and his luggage are such as to make him fit the profile of a drug courier, thereby giving trained officers reasonable cause to believe he is transporting drug contraband, the exigency created by the impending departure is sufficient to support an immediate search of his luggage without a warrant.
To prevent warrantless searches in such exigent circumstances would take away from the officers the power they must have, to be of effective service, for if they cannot search in such exigent circumstances, they are rendered ineffective to control air transportation of drugs by passengers, even when having probable cause to believe the luggage with which a passenger is about to depart contains drug contraband.
For the reasons stated, the order appealed from is affirmed.
SCHWARTZ, Judge (dissenting).
I respectfully but emphatically disagree with the majority's decision to affirm. While an extensive elaboration of my dissenting views would serve no useful purpose, suffice it to say that I believe that (a) when the officers, with his tickets and baggage checks in hand, "asked" Royer to accompany them to the police room at the airport, they effectively took him into custody and, for the purposes of constitutional analysis, placed him under arrest, Dunaway v. New York, 442 U.S. 200, 207, n. 6, 99 S. Ct. 2248, 2253, n. 6, 60 L. Ed. 2d 824, 832, n. 6 (1979); State v. Frost, 374 So. 2d 593 (Fla. 3d DCA 1979); see United States v. Carollo, 507 F.2d 50 (5th Cir.1975), cert. denied, 423 U.S. 874, 96 S. Ct. 143, 46 L. Ed. 2d 105 (1975); Brown v. Beto, 468 F.2d 1284 (5th Cir.1972); Trainer v. State, 346 So. 2d 1081 (Fla. 1st DCA 1977), cert. denied, 352 So. 2d 175 (Fla. 1977); In interest of R.L.J., 336 So. 2d 132 (Fla. 1st DCA 1976); (b) the arrest was unlawful because, whether or not the officers were justified in "encountering" Royer in the concourse, see United States v. Wylie, 186 U.S.App.D.C. 231, 569 F.2d 62 (D.C. Cir.1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1527, 55 L. Ed. 2d 542 (1978) or had the "founded suspicion" of criminal activity required to make a temporary investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); compare State v. Battleman, 374 So. 2d 636 (Fla. 3d DCA 1979) and State v. Frost, supra, and *1015 cases collected at 374 So. 2d 593, n. 4, with Myles v. State, 374 So. 2d 83 (Fla. 3d DCA 1979), they clearly did not, as one of the officers explicitly admitted below, have the "probable cause" to believe that Royer had committed a felony required to sustain a warrantless arrest, e.g., Bailey v. State, 319 So. 2d 22 (Fla. 1975); see Dunaway v. New York, supra; and (c) Royer's "consent" for the opening of his baggage was thus given while he was unlawfully in police custody and was therefore presumptively tainted and involuntary. Bailey v. State, supra, 319 So.2d at 27-28; State v. Frost, supra. Unlike, for example, Husted v. State, 370 So. 2d 853 (Fla. 3d DCA 1979) there was nothing to "break the chain" of presumptive coercion. The consent must therefore be deemed invalid as a matter of law. I would follow State v. Frost, supra; Taylor v. State, 355 So. 2d 180, 184 (Fla. 3d DCA 1978), cert. denied, 361 So. 2d 835 (Fla. 1978); and United States v. Ballard, 573 F.2d 913, 916 (5th Cir.1978), all of which seem to me to be almost precisely on point and to compel reversal. See also Pomerantz v. State, 372 So. 2d 104, 111 (Fla. 3d DCA 1979).
The same absence of probable cause which rendered Royer's arrest unlawful also precludes acceptance of the alternative ground relied on to uphold the search. Even if "exigent circumstances" existed, an issue I do not reach, such circumstances serve only to "excuse" the absence of a warrant, see Hornblower v. State, 351 So. 2d 716 (Fla. 1977). They do not take the place of the probable cause necessary to sustain any search of the kind involved in this case, whether made with a warrant or without one. E.g., Raffield v. State, 351 So. 2d 945 (Fla. 1977).
ON MOTION FOR REHEARING EN BANC GRANTED
Before BARKDULL, HENDRY, HUBBART, SCHWARTZ, NESBITT and BASKIN, JJ.
SCHWARTZ, Judge.
Royer appeals from his conviction for the felony possession of marijuana entered upon a nolo plea with the specific reservation of the right to review the denial of his motion to suppress the contraband in question. Because the majority opinion of the panel which affirmed the conviction conflicted with the prior decisions of this court in State v. Frost, 374 So. 2d 593 (Fla.3d DCA 1979) and Taylor v. State, 355 So. 2d 180 (Fla. 3d DCA 1978), the court has granted and heard oral argument upon the defendant's motion for rehearing en banc. Fla.R.App.P. 9.331(a), (c).[1] For the reasons which follow, we conclude that the motion to suppress should have been granted. Accordingly, we vacate the panel opinion and reverse the judgment below.
Only two persons testified at the motion to suppress: the defendant Royer, and William *1016 Johnson, one of the two Dade County narcotics officers who effected the search of Royer's suitcases which revealed the cannabis. Since the state prevailed below, we must and do view the evidence in the light most favorable to its position.[2] So considered, the record portrays a series of events which, while they fall generally within the "airport narcotics search" genre, must be considered in terms of their own particular and individual aspects.
Royer was first observed by Johnson and his partner, Magdalena, as he walked across the concourse of the Miami International Airport towards the National Airlines ticket counter, carrying two apparently heavily-laden suitcases. The officers were specifically assigned to interdict the transportation of narcotics through the airport. As Johnson stated, they based their initial decisions as to which travelers to approach upon a series of allegedly suspicious characteristics and circumstances, as contained in the now-familiar "drug courier profile,"[3] supplemented by the airport squad's own prior experiences. It may be fairly said as to all of the officers' bases of "suspicion" that, although they may indeed be characteristic of those who carry narcotics, they are at least equally, and usually far more frequently, consistent with complete innocence. The fallacy of the undistributed middle directly applies: all narcotics couriers act like parts of the profile, but most people who act like parts of the profile are not narcotics couriers. This point is well-illustrated by those aspects of Royer's behavior which attracted the attention of the officers. Johnson said that these were the facts that (a) the defendant was carrying American Tourister baggage of a type which "seemed to be standard brand for marijuana smugging;" (b) he was "nervous in appearance, looking around at other persons as though he might be looking for possible police officers;"[4] (c) he paid for the ticket to New York[5] in cash (and therefore without the necessity of showing identification) from a roll of small-denomination bills; and (d) rather than filling out a full name, address, and phone number on the baggage tags furnished by National, he wrote only the words "Holt" and "LaGuardia" on each of them.
Because of these facts, Johnson and Magdalena approached the "subject" as he left the ticket counter, identified themselves as police officers, and asked if he had a moment to talk. After he said "yes," they asked him to show his airline ticket and, thereafter, some other identification. He agreed to both requests. Like his bags, his ticket bore the name "Holt"; his identification, however, was a driver's license with the name "Mark Royer." When asked to explain the discrepancy, Royer said that a friend had made the reservation in the *1017 name of "Holt."[6] After this conversation, during which Royer became all the more obviously nervous, the officers "told Mr. Royer that we were narcotics investigators, and that we had reason to suspect that he was transporting narcotics." Thereupon
A. [W]e asked him to accompany us to a room that was adjacent to Concourse F to get out of the general population of the Airport.
Q. With regard to the room that you are talking about, how far away from the location you were at at this time was that room?
A. No more than forty feet.
Q. And would you describe the room for the Judge, please?
A. When you walk through the door you are in the Stewardess Lounge of Air Florida. And on the left hand wall of that lounge is what used to be a large storage closet.
We use that-we were at the time using that as our room that we would use for interviewing subjects or for processing people that we-well, actually for anything that we needed to use it for.
Q. Is that an official police room?
A. No, it's a closet that had shelves on one end of it and we fitted a small desk and two chairs in the closet.
Without his consent or agreement, the officers retrieved the suitcases Royer had checked with National and brought them to the "interrogation room." With Royer and his suitcases, and Magdalena and Johnson all in the small room together, the following occurred:
A. We asked Mr. Royer if he would give us consent to search both of the suitcases.
* * * * * *
Q. Do you recall what it was that you asked him?
A. To the best of my recollection, it was something to the effect that we suspected that he was carrying narcotics, and that we would like him to open the suitcases to allow us to see what was in them to dispel that suspicion or to confirm that suspicion.
Q. What, if anything, did the Defendant say at that time?
A. He was extremely nervous about it and he didn't say anything specifically that I can recall.
He produced a key out of his pants pocket and opened the white suitcase. And he stated to us that he didn't know the combination for the gray one which appeared to be brand new.
*1018 I asked him if we could open it, the gray one; did he have any objection, and he said, `No, go ahead.'
I explained to him I might have to break it and he had no objection to that.
Q. With regard to the white one, did he say anything prior to opening the suitcase?
A. No.
Q. Did he open it or did you?
A. He unlocked it and I opened it.
Each of the two suitcases contained a substantial amount of marijuana.
During cross-examination, officer Johnson specifically acknowledged that he did not have probable cause to place Royer under arrest at any time prior to opening the suitcases. Notwithstanding this admission, the trial judge denied the motion to suppress on the two separate grounds that (a) the defendant had freely and voluntarily consented to the search of his suitcases, and (b) in the airport-search context, "the officer doesn't have the time to run out and get a search warrant because the plane is going to take off. If there is going to be anything occurring, it's going to occur long before they can take any type of action." We can agree with neither asserted basis for the order below.
Consent Invalid
Upon a three step legal analysis of the facts involved in this case, we reject the state's primary argument for affirmance, that is, that Royer effectively and validly consented to the opening of his suitcases.
1) Royer Involuntarily Confined. It is first entirely clear that, when Royer gave his silent "consent" to the search of his suitcases, his liberty had been involuntarily restrained within the interrogation room. At that time, the defendant found himself in a small enclosed area being confronted by two police officers-a situation which presents an almost classic definition of imprisonment. Even beyond this, the officers had previously informed him that they had reason to suspect that he was transporting narcotics, which, by indicating that a criminal investigation had focused upon him, provided another clear sign that he had in fact been taken into custody. Brown v. Beto, 468 F.2d 1284 (5th Cir.1972); United States v. Phelps, 443 F.2d 246 (5th Cir.1971). Finally, his plane ticket and, perhaps more important, his luggage had been taken from him; if he had been permitted to leave the room at all, he could not go to New York without buying a new ticket, and could go nowhere without abandoning his suitcases.[7] In United States v. McCain, 556 F.2d 253 (5th Cir.1977), the court stated the retention of one's baggage precludes even a doubt that he was "in custody."
Applying the test adopted in Frost, it is obvious that Royer, as he himself testified, was "under [the] reasonable impression that he [was] not free to leave the officer's presence." 374 So.2d at 597, adopting United States v. Wylie, 569 F.2d 62, 68 (D.C. Cir.1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1527, 55 L. Ed. 2d 542 (1978).[8] Of course, this apprehension was much more than a well-justified subjective belief. As common sense tells us, and as the state conceded at the oral argument, the officers would not have permitted Royer to leave the room even if he had erroneously thought he could.
*1019 2) No Probable Cause. For all practical purposes, Royer had been placed under arrest when the alleged consent was given. The exact nomenclature employed to describe his situation is, however, unimportant. Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) makes clear that a police confinement which, as is obviously true in this case, goes beyond the limited restraint of a Terry[9] investigatory stop may be constitutionally justified only by probable cause. As Johnson specifically admitted below, no such probable cause existed in this case.
Since, as we have noted, the conduct involved is typically just as consistent with innocence as with guilt, the weight of authority on the question is that a mere similarity with the contents of the drug courier profile is insufficient even to constitute the articulable suspicion required to justify a Terry stop. E.g., Reid v. Georgia, ___ U.S. ___, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980); United States v. Ballard, supra; State v. Frost, supra, at 374 So. 2d 593, n. 4; State v. Key, 375 So. 2d 1354 (La. 1979); contra, United States v. Mendenhall, supra (opinion of Powell, J., concurring in part, concurring in judgment). Even were the rule otherwise, and whether or not the additional false identification factor would be deemed to provide such "founded suspicion,"[10] there can be no question that all the facts and circumstances, including that one,[11] were not "sufficient in themselves to warrant a man of reasonable caution in the belief that a [felony] has been or is being committed," and thus to constitute probable cause. E.g., Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925); Bryant v. State, 155 So. 2d 396 (Fla. 2d DCA 1963), and cases collected; 14 Fla.Jur.2d Criminal Law § 388 (1979). The cases which treat factual patterns similar to or even stronger than this one unanimously hold that they do not give rise to probable cause. E.g., United States v. Moore, 483 F.2d 1361 (9th Cir.1973); see, United States v. Pope, 561 F.2d 663 (6th Cir.1977); United States v. McCaleb, 522 F.2d 717 (6th Cir.1977). We have been cited to and have found not a single decision to support the state's contrary position. It would be a pernicious doctrine indeed which would permit the arrest of any citizen essentially upon the basis of his perceived resemblance to a sterotypical criminal. We decline to be the first court to adopt such a principle.
3) Consent Tainted and Invalid. The consent was thus given after Royer had been unlawfully confined. Under these circumstances, the rule restated in Norman v. State, 379 So. 2d 643, 646-47 (Fla. 1980) directly applies:
[W]hen consent is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary and consent to search. Bailey v. State, [319 So. 2d 22 (Fla. 1975)]; Earman v. State, 265 So. 2d 695 (Fla. 1972); Taylor v. State, [355 So. 2d 180 (Fla. 3d DCA 1978)]. See Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The consent will be held voluntary only if there is clear and convincing proof of an *1020 unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action. Bailey v. State, 319 So.2d at 28; Sheff v. State, 329 So. 2d 270 (Fla. 1976).
Accord, e.g., United States v. Ballard, supra; State v. Frost, supra; Pomerantz v. State, 372 So. 2d 104, 111 (Fla. 3d DCA 1979). Since, unlike Husted v. State, 370 So. 2d 853 (Fla. 3d DCA 1979) and United States v. Mendenhall, supra, in both of which the defendant was specifically informed of the right to refuse consent, but like Frost, there was no proof at all of any "break in the chain of illegality," Royer's consent must be deemed involuntary and thus invalid as a matter of law.
"Exigent Circumstances" Irrelevant
The same absence of probable cause which rendered Royer's confinement unlawful also precludes acceptance of the alternative ground relied upon to uphold the search. We do not decide whether "exigent circumstances" are involved in departing airline passenger cases like this one[12] because, even if they exist, such circumstances serve only to "excuse" the absence of a warrant. See, Hornblower v. State, 351 So. 2d 716 (Fla. 1977). They do not take the place of the probable cause necessary to sustain any search of the kind involved in this case, whether made with a warrant or without one. E.g., Raffield v. State, 351 So. 2d 945 (Fla. 1977).
The judgment below is therefore reversed and the cause remanded with directions to discharge the defendant.
Reversed and remanded.
HUBBART, Judge (concurring).
I concur in the judgment of the court; I also concur in the opinion of the court except insofar as it concludes that the entire "drug courier profile," as developed by state and federal law enforcement officials for use at major airports, represents innocent behavior which is insufficient in any case to constitute reasonable suspicion for the temporary stop of an air traveler in an airport. I regard such a conclusion as unwarranted under the established law, and, in any event, unnecessary to the decision in this case and, therefore, obiter dicta. The issue is of sufficient importance, however, that a separate concurring opinion seems appropriate.
A
At the outset, I entirely agree with the court that the "drug courier profile" behavior exhibited by the defendant herein, did not in this case [and could not, without more, in any case] constitute probable cause for the defendant's arrest and detention in the police interrogation room at the airport, that this unreasonable arrest plus the unauthorized seizure of the defendant's luggage presumptively tainted and rendered involuntary the defendant's "consent" given to the police to search his luggage, and that the marijuana seized by the police without a search warrant from the defendant's luggage was inadmissible in evidence at trial as it constituted the fruit of an unreasonable search and seizure condemned by the state and federal constitutions. Indeed, I read the court's decision to precisely so hold, and as to this holding, I am in complete agreement.
I cannot agree, however, with the court's broadside attack against the "drug courier profile" presented in this case as being "at least equally, and usually far more frequently, consistent with complete innocence," [p. 1016], as suffering from the "fallacy of the undistributed middle" in that "most people who act like parts of the profile are not narcotics couriers," [p. 1016], and as representing entirely innocuous behavior in that "the conduct involved is typically just as consistent with innocence as with guilt" [p. 1019]. Nor do I agree *1021 with the court's equally sweeping legal conclusion, based on a misreading of existing case law, that "a mere similarity with the contents of the drug courier profile is insufficient even to constitute the articulable suspicion required to justify a Terry stop." [p. 1019], and that "a conformance without more, to one or more elements of the profile does not amount to articulable suspicion [for a Terry stop]." [p. 1017, fn.6]. These pronouncements are not only unnecessary to the decision herein,[1] but are, in my view, unsupported by the existing case law.
B
In analyzing whether a temporary seizure of a person by the police for investigative purposes under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is "reasonable" within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution, we are guided by the following controlling principles of law:
"The touchstone of our analysis under the Fourth Amendment is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' (citation omitted). Reasonableness, of course, depends `on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law [enforcement] officers.'" (citation omitted). Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S. Ct. 330, 332, 54 L. Ed. 2d 331 (1977).
"Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. (citation omitted).
A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. (citations omitted). To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure *1022 must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." (citations omitted). Brown v. Texas, 443 U.S. 47, 50; 99 S. Ct. 2637, 2640, 61 L. Ed. 2d 357, 362 (1979).
"The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of `reasonableness' upon the exercise of discretion by governmental officials, including law enforcement agents, in order `to safeguard the privacy and security of individuals against arbitrary invasions....' (citations omitted). Thus, the permissibility of a particular law-enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement by an `objective standard,' whether this be probable cause or a less stringent test." Delaware v. Prouse, 440 U.S. 648, 653-654, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660 (1979).
Based on the above cases, there appear to be three central factors involved in determining whether a temporary seizure of a person by the police is constitutionally "reasonable": (i) the public interest served by the seizure, (ii) the nature and scope of the intrusion, and (iii) the objective facts upon which the law enforcement officer relied to make the temporary seizure in light of his knowledge and experience. United States v. Mendenhall, ___ U.S. ___, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (Powell, J., concurring).
As applied to the temporary seizure of an air traveler by the police in a major metropolitan airport based on the "drug courier profile" behavior, the cases to date yield no talismatic rule either upholding or striking down such seizures. In struggling with this immensely difficult problem, the courts, presented with a myriad of fact patterns, have upheld some such seizures[2] while striking down others.[3] The results in each case appear to turn on the nature of the profile behavior shown in the particular case and the court's perception of how objectively suspicious the behavior in question seems to be. Moreover, the courts have considered "drug courier profile" behavior as part of the total composite of founded suspicion, along with other suspicious conduct, in sustaining temporary stops of air travelers at major airports.[4]
In this connection, the established law is accurately stated in our decision in State v. Mitchell, 377 So. 2d 1006 (Fla. 3d DCA 1979):
"The law is well-established that a police officer may make an investigative stop if he has a `founded suspicion' that an individual is involved in criminal activity (citation omitted). Further, while the drug courier profile by itself provides no probable cause to arrest an individual, a set of facts may arise in which the existence of certain profile characteristics constitutes reasonable suspicion to warrant the intrusion of an investigative stop." Id. at 1008. [emphasis added].
The court herein makes no effort to qualify or upset the above statement of law in *1023 Mitchell. As such, it still stands as good law in this district and, indeed, accurately states the law throughout the country.
The court's reliance herein on United States v. Mendenhall, 596 F.2d 706 (6th Cir.1979); United States v. Smith, 574 F.2d 882 (6th Cir.1978); United States v. Ballard, 573 F.2d 913 (5th Cir.1978); United States v. McCaleb, 552 F.2d 717 (6th Cir.1977); United States v. Rico, 594 F.2d 320 (2d Cir.1979) [cases collected in State v. Frost, 374 So. 2d 593, 596 fn. 4 (Fla. 3d DCA 1979)] and State v. Key, 375 So. 2d 1354 (La. 1979), for a contrary result is misplaced. None of these cases announce a rule which invalidates all temporary stops of air travelers at airports based on the "drug courier profile" save possibly United States v. Smith, 574 F.2d 882 (6th Cir.1978), and that in a rather watered down version in a case which in fact upheld the temporary airport stop. ("[T]he rule has emerged that the characteristics of the drug courier profile are not alone enough to provide probable cause to arrest nor necessarily enough to create a reasonable suspicion to stop under Terry.") Indeed, United States v. McCaleb, 552 F.2d 717, 720 (6th Cir.1977), states:
"We agree with the conclusion of the district judge that the `drug courier profile,' by itself, provides no probable cause to arrest an individual. In addition, while a set of facts may arise in which the existence of certain profile characteristics constitutes reasonable suspicion, the circumstances of this case do not provide `specific and articulable facts which taken together with rational inferences from these facts, reasonably warrant[ed] `the intrusion of an investigatory stop.'." [emphasis added]
And United States v. Mendenhall, 596 F.2d 706, 707 (6th Cir.1979) (en banc) states:
"Examination of these records and re-examination of precedent in these airport drug search cases in this and other Appellate Courts have led to our decision not to attempt to formulate definitive rules. Despite some general similarities, every single case differs from every other in material degree."
It should also be noted that the Mendenhall court's result in striking down the airport search involved has since been reversed by the U.S. Supreme Court. United States v. Mendenhall, ___ U.S. ___, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). As such, I cannot agree with this court and the Frost court's reading of the above cases, which is concededly dicta, that "drug courier profile" behavior cannot in any case constitute reasonable suspicion for a temporary stop of an air traveler in an airport. These cases state no such definitive rule, but proceed on a case-by-case basis.
C
In determining whether in a given case "drug courier profile" behavior rises to the level of reasonable suspicion for a temporary stop of an air traveler in an airport, the decisions to date necessarily involve an application of the previously stated three constitutional factors to the particular facts of the case. These factors, in turn, require careful consideration.
1
First, the public interest served by the temporary seizures of air travelers under discussion, particularly at the Miami International Airport, is without a doubt an immensely important one. Indeed, any fair-minded person must surely conclude, in view of the overwhelming evidence available, that South Florida is being inundated with a multi-million dollar narcotic drug traffic derived in large part from sources outside the country. That traffic by any standard is corrupting this society and simultaneously bringing with it an unprecedented degree of violence and murder which is not unknown in the Great Miami area. It is undisputed that this drug traffic utilizes, in part, the Miami International Airport to transport narcotic drugs through *1024 drug couriers to various parts of the country.[5]
Mr. Justice Powell in United States v. Mendenhall, ___ U.S. ___, ___, 100 S. Ct. 1870, 1881, 64 L. Ed. 2d 497, 514 (1980), has further emphasized the importance of the public interest served by the temporary seizures under discussion:
"The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs, including heroin, may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement."
The gravity of the governmental interest in suppressing the drug traffic is, therefore, considerable, and that interest is surely served by the temporary seizure of air travelers at the Miami International Airport for further investigation.
2
Secondly, the nature and scope of the intrusion into personal privacy represented by the temporary seizures under discussion is a carefully limited one. No arrest or embarrassing trip to the police station is involved; no frisk of the person follows;[6] and no handcuffing or actual physical restraint is accomplished. Airline travelers are merely required by these detentions to stop temporarily, produce their ticket and identification, and generally answer brief questions about themselves, their luggage and their travel plans. This is surely not a humiliating invasion of personal privacy, but an extremely limited intrusion particularly when viewed against the lesser expectation of privacy which is reasonably entertained by air travelers in airports. Such travelers, for example, expect from time to time to display their ticket or identification and explain their travel plans to various people in the airport. Moreover, electronic searches of air travelers and their luggage are now accepted as routine. We deal then with what, in my view, constitutes a cognizable, but minimal intrusion of personal privacy.
3
Thirdly, the evidentiary basis for the above temporary seizures as represented by the "drug courier profile" behavior varies with each case. Such a profile has been described as "a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics." Reid v. Georgia, ___ U.S. ___, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980). We must weigh this varying evidentiary showing in each case against the strong governmental interest involved and the minimal invasion of privacy accomplished by the temporary detentions under discussion.
Viewed individually and in the abstract, I must agree with the court that some of the characteristics of the profile as seen in this case seem harmless enough and, therefore, of no evidentiary consequence. We cannot, however, view these characteristics individually or in the abstract as we deal with a composite picture of behavior which entails a good deal more than superficial observation might yield. We have and cannot ignore the law enforcement experience of the federal Drug Enforcement Administration at the Detroit Airport, which agency developed *1025 the "drug courier profile" under discussion. Mr. Justice Powell in United States v. Mendenhall, ___ U.S. ___, ___, 100 S. Ct. 1870, 1881, 64 L. Ed. 2d 497, 514 (1980), reports the results of this experience as follows:
"[T]he Drug Enforcement Administration since 1974 has assigned highly skilled agents to the Detroit airport as part of a nationwide program to intercept drug couriers transporting narcotics between major drug sources and distribution centers in the United States. Federal agents have developed `drug courier profiles,' that describe the characteristics generally associated with narcotics traffickers. For example, because the Drug Enforcement Administration believes that most drugs enter Detroit from one of four `source' cities (Los Angeles, San Diego, Miami, or New York), agents pay particular attention to passengers who arrive from those places. See United States v. Van Lewis, 409 F. Supp. 535, 538 (ED Mich. 1976), aff'd, 556 F.2d 385 (CA6 1977). During the first 18 months of the program, agents watching the Detroit airport searched 141 persons in 96 encounters. They found controlled substances in 77 of the encounters and arrested 122 persons. Id., at 539."
In addition, the court in its opinion herein has recognized the experience of the Dade County Public Safety Department's drug enforcement unit at the Miami International Airport which has worked for some time with the "drug courier profile" developed by the federal DEA. During the period from October 1, 1977 through May 31, 1979, the above airport drug unit initiated 512 narcotics investigations at the Miami International Airport based on the "drug courier profile" which resulted in the identification of 386 narcotics drug couriers, the arrest of 298 drug couriers and the interception of 48 narcotic shipments.[7]
Based on this law enforcement experience, the "drug courier profile" cannot be viewed, as I think the court's opinion herein implies, as neutral behavior having little or no suspicious connotation. Obviously, such conduct has incriminating evidentiary value and cannot be dismissed as trivial or logically fallacious. Still, too much can be claimed for the profile. It is admittedly informal, very much in the development stages, and, as yet, has no rigid content. As such, the cases have recognized that "drug courier profile" behavior can never constitute, without more, probable cause to effect a full custodial arrest or search.[8] The cases have further recognized that such behavior must be examined case by case in determining whether it alone, or in combination with other suspicious conduct, is sufficient to make a temporary airport stop. As to the latter, the courts appear to focus in each case on whether the behavior exhibited sets the suspect suspiciously apart from the normal run of air travelers sufficient to justify the minimal intrusion of privacy under discussion. In this connection, it should be noted that profile behavior in spotting other criminal suspects at airports, such as potential skyjackers, have generally received a favorable reception in the courts as a valid basis for effecting certain limited detentions of air travelers. See United States v. Cyzewski, 484 F.2d 509 (5th Cir.1973), cert. *1026 dism. 415 U.S. 902, 94 S. Ct. 936, 39 L. Ed. 2d 459 (1974); United States v. Bell, 464 F.2d 667 (2d Cir.1972), cert. den. 409 U.S. 991, 93 S. Ct. 335, 34 L. Ed. 2d 258 (1972).
D
In sum, we deal with an immensely complicated constitutional problem which is not aided by the court's wholesale dismissal of the "drug courier profile" as being of little or no evidentiary consequence and insufficient in any case to constitute reasonable suspicion for the temporary stop of an air traveler in an airport regardless of the number of characteristics in the profile exhibited by the suspect. Such a sweeping statement of law is unsupported by the cases to date, and, in any event, represents obiter dicta in this case. We must proceed, in my view, to approach temporary "drug courier profile" stops in airports according to a careful case-by-case constitutional analysis much as the established law has developed in the past with respect to temporary Terry stops. With these reservations, I concur in the judgment and opinion of the court.
BARKDULL, Judge, specially concurring.
I concur in the opinion authored by Judge Schwartz as it relates to the invalid consent to search only because of the failure of the law enforcement officers to return the ticket and their failure to advise Royer that he had a right to decline the search if he desired. See and compare: United States v. Mendenhall, ___ U.S. ___, 100 S. Ct. 1870, 64 L. Ed. 2d 497.
NOTES
[1] In denying the motion to suppress, the trial court stated as follows:
"Motion to suppress be in (sic) the same is hereby denied. We are dealing with an unusual circumstance. Profile searches, as they have been called, I believe, is something new. But then at the time [of] the Carroll decision, the search of an automobile and the manner in which it took place, was something new. What is reasonable in one circumstance may not be reasonable in another circumstance. Number one, the Court's ruling, on denying the motion to suppress, is that the Court believes that the consent was freely and voluntarily given. By the same token, I think under circumstances such as this where the police officers are in an airport and are surveilling, as testified to by the officer, with a specific profile that they are following, that the officer doesn't have the time to run out and get a search warrant because the plane is going to take off. If there is going to be anything occurring, it's going to occur long before they can take any type of action. So it's a denial on dual grounds. Might as well get it tested whether it's reasonable or unreasonable because, I assume you are taking an appeal?"
[2] Each of the charged offenses was a third degree felony under § 893.13(1)(a)(2), Fla. Stat. (1975), and was punishable by a term of imprisonment not to exceed five years [§ 775.082, Fla. Stat. (1975)].
[3] The testimony of Officer Johnson and of the defendant conflicted on only one item. Johnson testified that when he asked the defendant for permission to open the suitcases the defendant produced a key from one of his pockets and used it to unlock the one case. The defendant testified that previously the officers had had him empty his pockets, and that he had obtained the key with which he opened one of the cases from the top of a desk upon which the contents of his pockets had been placed by him. In rebuttal thereto, Johnson testified again that the defendant took the key from his pocket to open the case, and testified that the defendant had not been requested to empty his pockets until after he was arrested, after the suitcases had been opened.
[4] State v. Wise, 356 So. 2d 920 (Fla. 2nd DCA 1978); Cockerham v. State, 237 So. 2d 32 (Fla. 1st DCA 1970); James v. State, 223 So. 2d 52 (Fla. 4th DCA 1969).
[5] The establishment of such a rule of law would operate to permit a person, by purposely and intentionally giving his consent to officers to make a warrantless search which revealed contraband, thereby to make sure that subsequently there could be no use of the contraband as evidence.
[6] As arrest was made in United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). There the travel was by Amtrak train, from San Diego to Boston. The luggage was a footlocker. The arrest, prior to search of the luggage, was based on profile. As stated by the Supreme Court, "Because Machado [one of the two departing passengers] matched a profile used to spot drug traffickers" the railroad officials notified the federal agents in San Diego who passed the information on to their Boston counterparts, with descriptions of the passengers and luggage. When the passengers arrived in Boston, claimed the footlocker, and were loading it into an automobile which arrived to meet them, they and the driver of the automobile were arrested, and they with the footlocker were taken to the Federal Building. There, an hour and a half later, the footlocker containing contraband was opened without a search warrant having been obtained. In the trial of that case, the exclusion as evidence of the contraband from the footlocker was not on the ground that the arrest had been illegal, but on the ground that the search and seizure were unlawful, when made without a warrant after such period of time when the footlocker had been taken and was held in exclusive custody of the Government and when there was no exigency to support need for immediate search.
[7] In Carroll v. United States, supra, in which the opinion of the Court was written by William Howard Taft, Chief Justice of the United States, it was held that an automobile could be stopped and searched (for contraband liquor) when "the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."
In Carroll, the facts as stated by the Court were as follows. On September 20, 1921, the officers involved, posing as civilians, in an apartment maintained by them in Grand Rapids, Michigan, met with Carroll, Kiro and Kruska, known to them to be bootleggers based in Grand Rapids. The officers arranged to purchase three cases of whiskey from them, and they left to get the whiskey. Kruska returned and reported it could not be delivered then, but that it would be delivered the next day. No such later delivery was made. The officers had observed the Oldsmobile roadster in which the men had come to the meeting. Several weeks later, on October 6, 1921, while said officers were patrolling the Detroit to Grand Rapids highway, they were passed by Carroll and Kiro in the Oldsmobile, driving east toward Detroit. The officers followed, "to see where they were going," but lost sight of them in the traffic. Two months later, on December 15, 1921, while driving east on said highway, the officers were passed by Carroll and Kiro in the Oldsmobile, driving west. The officers turned around, and overtook and stopped the Carroll automobile at a point 16 miles east of Grand Rapids. They searched the car and seized 68 bottles of contraband imported whiskey and gin, which they found hidden behind the upholstery of the automobile seats, from which the filling had been removed.
In Carroll, the probable cause of the officers to believe the Carroll automobile carried contraband liquor was based in substantial part on a profile. Augmenting knowledge that Carroll and Kiro were bootleggers, there was only the profile situation to cause belief that the car, on that occasion, contained contraband. The officers did not have any advance information or tip that said automobile would be on the highway that day carrying liquor. On the contrary, as noted by the Court in its statement of the facts, "The officers were not anticipating that the defendants would be coming through on the highway at that particular time, but when they met them there they believed that they were carrying liquor; and hence the search, seizure and arrest."
The fact that Carroll and Kiro were known to be bootleggers would not have authorized an officer to stop and search the Carroll automobile in all circumstances, such, for example, as if Carroll had been observed driving his car on a residential street in Grand Rapids on a Sunday morning en route to his home from church. The profile circumstances which authorized the search at the time and place when it was made were that Detroit was known to be a main point of distribution of imported contraband liquor, and that the Detroit to Grand Rapids highway was known to be a route used by bootleggers in the transportation and distribution of such contraband by automobile to Grand Rapids and to the "hinterland." Based thereon the Court held that upon observing the bootleggers driving toward Grand Rapids on the Detroit to Grand Rapids highway the officers had probable cause to believe the automobile contained contraband liquor, and thereby were authorized to stop and search the automobile without a warrant.
[8] United States v. Tramunti, 513 F.2d 1087, 1104-1105 (2d Cir.1975) (suitcase); United States v. Soriano, 497 F.2d 147 (5th Cir.1974) (suitcases); United States v. Evans, 481 F.2d 990, 993-994 (9th Cir.1973) (footlocker).
[9] The holding of this court in Pomerantz v. State, 372 So. 2d 104 (Fla. 3d DCA 1979), that a warrantless search of three suitcases which had been checked for air transit was unlawful, is distinguishable on the facts from the situation presented in this case. There, in the handling of the suitcases after they were checked, one of them flew open. Its contents were disclosed to consist of a filled opaque bag [which in fact contained marijuana]. When it and the other suitcases were searched, the officers had no knowledge as to the ownership thereof, or as to who had checked them. The person who checked the three suitcases had not been observed by officers. There was no profile of a drug-carrying passenger connected with the luggage in question.
[1] Fla.R.App.P. 9.331(a) specifically provides that "[a] district court of appeal en banc shall consist of the judges in regular active service on the court." Accordingly, the court which heard and decided the motion for rehearing en banc in this case did not include Associate Judges Carroll and Ezell, who formed the majority of the original panel. On the basis of the clear provision of the rule, we overrule the appellee's objection to the absence of these judges from the en banc court. It should be noted that the fifth circuit cases cited in support of the state's position, Allen v. Johnson, 391 F.2d 527 (5th Cir.1968) and Luna v. Beto, 395 F.2d 35 (5th Cir.1968) were decided pursuant to the then-applicable provisions of 28 U.S.C. § 46 (c), which explicitly stated:
"(c) Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular service. A court in banc shall consist of all circuit judges in regular active service. A circuit judge of the circuit who has retired from regular active service shall also be competent to sit as a judge of the court in banc in the rehearing of a case or controversy if he sat in the court or division at the original hearing thereof." [e.s.]
The emphasized sentence has no equivalent in the Florida rule, and was eliminated even from the Federal code in 1978. Pub.L. 95-486, § 5(a), (b), 92 Stat. 1633. Under the present code provision, which is essentially identical to our rule, visiting or senior judges who have served on the initial panel do not hear rehearings en banc in the federal circuit courts of appeals. See Fifth Circuit Rule 16.1; Fed.R. App.P. 35.
[2] Franklin v. State, 374 So. 2d 1151 (Fla. 3d DCA 1979); State v. Williams, 371 So. 2d 1074 (Fla. 3d DCA 1979), cert. denied, 381 So. 2d 771 (Fla. 1980).
[3] See e.g., United States v. Ballard, 573 F.2d 913 (5th Cir.1978) and cases cited in State v. Frost, supra, at 374 So. 2d 593, n. 4.
[4] Johnson stated that he was able to detect a difference in the manner or type of wariness exhibited by a narcotics courier as opposed to the "perceptibly different type of nervousness" characteristic of "white knuckle type" flyers or others who were just plain nervous people. The effect of any such amateur forensic psychiatry must be completely disregarded. It is true that, in determining the existence of either founded suspicion or probable cause, an officer's expertise should be considered. But this special knowledge must be based upon some specific objective fact which the officer knows from experience is associated with criminality. That small tin foil packets invariably contain contraband is one such example. See, Bush v. State, 369 So. 2d 674 (Fla. 3d DCA 1979). On the other hand, it would be gravely dangerous to the very basis of our system to attach any legal credence to the subjective avowals of a policeman (or anyone else) that he can tell a criminal when he sees one or that he knows "from his experience" that the guilty look or act differently from the innocent.
[5] The officers were in the vicinity specifically to watch those boarding a National flight to Los Angeles-a profile "target city"-which was scheduled to leave shortly after Royer's flight to New York. It was not suggested that flying to New York City is itself suspicious, though it was implied otherwise concerning Los Angeles.
[6] In Frost the assistant state attorney in the trial court agreed that this was a reasonable explanation, and the state stipulated on appeal that this fact, along with others very similar to those here, did not amount even to the "founded suspicion" necessary to support a Terry stop, much less the probable cause which is required for an arrest (and which was found to exist by the majority of the panel in this case). We were therefore not required to and did not adjudicate those issues in Frost. Moreover, Frost did not involve the additional fact, present in this case, that the false name had also been placed on defendant's baggage, thus tending to dissipate the reasonableness of the explanation concerning the reservation. Since we hold, infra, that probable cause was required in this case and did not exist, we need not decide whether on this ground there was founded suspicion to justify "stopping" Royer. See also, Myles v. State, 374 So. 2d 83 (Fla. 3d DCA 1979); State v. Mitchell, 377 So. 2d 1006 (Fla. 3d DCA 1979); State v. Battleman, 374 So. 2d 636 (Fla. 3d DCA 1979).
We see no reason, however, to depart from our stated agreement in Frost at 374 So. 2d 593, n. 4 with the decisions that a conformance, without more, to one or more elements of the profile does not amount to articulable suspicion. Accord, Reid v. Georgia, ___ U.S. ___, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980); contra, United States v. Mendenhall, ___ U.S. ___, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (opinion of Powell, J., concurring in part, concurring in judgment). The Mitchell case, in which the police had specific incriminating information about the particular suspect, is not contrary to this view. Nor, as we read them, are the second circuit decisions cited in footnote 2 of Judge Hubbart's concurring opinion. In each instance, far more in the way of suspicious activity than adherence to the "profile" was involved. Probably because of this, none of the three cases even professes reliance on the profile, and United States v. Vasquez-Santiago, 602 F.2d 1069, 1072 (2d Cir.1979) expressly disclaims it.
[7] All these facts are decisively different from those in United States v. Mendenhall, supra.
[8] The only actual holding in the Frost case was that a Terry stop had been effected when the officers took and retained possession of the defendant's driver's license and airline ticket, thus requiring founded or articulable suspicion. See note 6, supra. Compare United States v. Mendenhall, supra, in which the officers returned the defendant's ticket and driver's license. Our decision in this case, which involves far more than a mere "stop," does not affect that conclusion, which we specifically reendorse. See also, United States v. Mendenhall, supra, (opinions of Powell, J., note 1; and White, J., dissenting). It should be emphasized, however, that we did not then, nor do we now, pass upon the issue of whether, as indicated in several cases cited only in dictum in Frost, a stop takes place as soon as an officer approaches a suspect and asks to speak to him. Contra, e.g., United States v. Mendenhall, supra (opinion of Stewart, J.); State v. Shy, 373 So. 2d 145 (La. 1979).
[9] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[10] See, e.g., State v. Ramos, 378 So. 2d 1294, 1298 (Fla. 3d DCA 1979) (facts raised articulable suspicion but were "insufficient to constitute probable cause for arrest"); Franklin v. State, supra (same); note 6, supra.
[11] It should be noted that Royer did not misidentify himself to the police officers; he merely employed another name on his ticket and baggage. See note 6, supra. In our view, one's use in this manner of a name which is not his own, while perhaps suspicious, is not unlawful and certainly does not give rise to a reasonable belief that he is in the process of committing a felony. See, United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir.1975) ("Admittedly, the possession of property bearing someone else's name would not constitute probable cause for petitioner's arrest."). Cf., Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971) ("Aliases and false identifications are not uncommon."); United States v. Stamps, 430 F.2d 33 (5th Cir.1970).
[12] We note, however, that when there is probable cause (secured from a "dog sniff" or otherwise, see State v. Goodley, 381 So. 2d 1180 (Fla. 3d DCA 1980)), to support a valid arrest, both the traveler and his baggage would thereafter not be going anywhere. There would then be adequate time, opportunity and basis to secure a warrant to open his suitcases as required by United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977).
[1] We deal in this case with a coerced consent to search which was fatally tainted and rendered involuntary by an illegal arrest of the defendant and an unauthorized seizure of his luggage. We, therefore, have no occasion to decide whether, in the abstract, the police would have been authorized to temporarily detain the defendant herein. Indeed, the court concedes as much as footnote 6 of its opinion. ("Since we hold, infra, that probable cause was required in this case and did not exist, we need not decide whether on this ground there was founded suspicion to justify `stopping' Royer."). The court's above-stated pronouncements on the issue are, therefore, unnecessary to the decision and, in my view, obiter dicta.
In this connection, I find Judge Schwartz' carefully reasoned dissent from the panel decision in this cause extremely persuasive:
"I respectfully but emphatically disagree with the majority's decision to affirm. While an extensive elaboration of my dissenting views would serve no useful purpose, suffice it to say that I believe that (a) when the officers, with his tickets and baggage checks in hand, `asked' Royer to accompany them to the police room at the airport, they effectively took him into custody and, for the purposes of constitutional analysis, placed him under arrest, (citations omitted); (b) the arrest was unlawful because whether or not the officers were justified in `encountering' Royer in the concourse, (citation omitted) or had the `founded suspicion' of criminal activity required to make a temporary investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); (citations omitted), they clearly did not, as one of the officers explicitly admitted below, have the `probable cause' to believe that Royer had committed a felony required to sustain a warrantless arrest (citations omitted); and (c) Royer's `consent' for the opening of his baggage was thus given while he was unlawfully in police custody and was therefore presumptively tainted and involuntary." Royer v. State, 389 So. 2d 1007 (Fla. 3d DCA 1979).
Moreover, I read the court's en banc decision as holding precisely in accord with Judge Schwartz' dissent with the addition that the "consent" given was also coerced by the illegal police seizure of the defendant's luggage. Unfortunately, the court has added additional sweeping language in its en banc opinion which is unnecessary, in my view, to the decision herein.
[2] See e.g. United States v. Vasquez, 612 F.2d 1338 (2d Cir.1979); United States v. Vasquez-Santiago, 602 F.2d 1069 (2d Cir.1979); United States v. Price, 599 F.2d 494 (2d Cir.1979); also see United States v. Mendenhall, ___ U.S. ___, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (Powell, J. concurring).
[3] See e.g. Reid v. Georgia, ___ U.S. ___, 100 S. Ct. 2752, 65 L. Ed. 2d 840 (1980); United States v. Buenaventura-Ariza, 615 F.2d 37 (2d Cir.1980); United States v. Ballard, 573 F.2d 913 (5th Cir.1978); United States v. McCaleb, 552 F.2d 717 (6th Cir.1977); also see State v. Key, 375 So. 2d 1354 (La. 1979); State v. Battleman, 374 So. 2d 636 (Fla. 3d DCA 1979).
[4] See e.g. United States v. Smith, 574 F.2d 882 (6th Cir.1978); State v. Mitchell, 377 So. 2d 1006 (Fla. 3d DCA 1979); also see Myles v. State, 374 So. 2d 83 (Fla. 3d DCA 1979).
[5] Report of the Select Committee on Narcotics Abuse and Control, U.S. House of Representatives, 95th Congress (August 1978).
[6] Indeed, such a frisk would, in all likelihood, be unreasonable as at best the "drug courier profile" provides only reasonable suspicion that the person is carrying drugs, not that he is armed and dangerous. To constitutionally accomplish a weapons frisk, additional incriminating evidence apart from the profile, pointing to weapons possession would appear to be required to justify a frisk. See Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); State v. Lundy, 334 So. 2d 671 (Fla. 4th DCA 1976).
[7] Report of Dade County Public Safety Department Organized Crime Unit, Airport Narcotics Unit, Statistical Report (1979).
[8] See e.g. United States v. Smith, 574 F.2d 882 (6th Cir.1978); United States v. McCaleb, 552 F.2d 717 (6th Cir.1977); State v. Mitchell, 377 So. 2d 1006 (Fla. 3d DCA 1979).
Judge Carroll's opinion for the majority in the panel decision in this case presents the case for the "drug courier profile" as constituting probable cause for arrest or search as well as I have seen it presented. Royer v. State, 389 So. 2d 1007 (Fla. 3d DCA 1979). Still, I remain unpersuaded by the legal analysis therein developed as, in my view, the profile, together with the law enforcement experience above discussed, is not sufficiently probative to justify a probable cause belief of criminal activity so as to authorize a full custodial arrest or search. At best, we deal with founded suspicion for a temporary stop. Moreover, I cannot agree that Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) or United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), hold that a "bootlegger profile" or a "drug courier profile" constitutes probable cause for an arrest or search. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1853976/ | 191 B.R. 102 (1996)
In re Maggie Marie BALDOWSKI, Debtor.
Bankruptcy No. 195-10064-7.
United States Bankruptcy Court, N.D. Texas, Abilene Division.
January 19, 1996.
*103 Gary L. Hacker, Whitten & Young, P.C., Abilene, TX, for debtor.
Becky M. Fesmire, Lubbock, TX, for trustee.
MEMORANDUM OF OPINION ON EXEMPTIONS
JOHN C. AKARD, Bankruptcy Judge.
The issue before the court is whether various items of personal property used by the Debtor in the operation of her restaurant are entitled to the "tools of the trade" exemption under Texas law. This court finds that these items may be claimed as exempt.[1]
FACTS
Maggie Marie Baldowski (Debtor) filed for relief under Chapter 7 of the Bankruptcy Code on March 10, 1995. When the Debtor filed her petition, she operated a business known as "Maggie's Cafe" in Stamford, Texas. The Debtor claimed certain items of personal property, used in the restaurant for many years prior to the commencement of her bankruptcy case, as exempt under § 42.002(a)(4) of the Texas Property Code. Max R. Tarbox, the Trustee-in-Bankruptcy, filed objections to the following claimed exemptions: two booths, one cash register, two dozen divided plates, two solid plates, one dozen platters, 46 knives, 46 forks, 25 spoons, five square-shaped tables, one round table, 20 chairs, two dozen glasses, and two dozen cups.
All personal property (including the disputed items) claimed as exempt by the Debtor does not exceed the $60,000 valuation limit on exempt personal property allowed to a family under TEX.PROP.CODE ANN. § 42.001(a)(1) (Vernon Supp.1995). The total value of Debtor's claimed exemptions is $3,000.
POSITIONS OF THE PARTIES
The Trustee asserted that the disputed items in this case cannot be characterized as tools, equipment or apparatus of the Debtor's trade. Thus, under the authority of Simmang v. Pennsylvania Fire Ins. Co., 102 Tex. 39, 112 S.W. 1044 (1908) and Davis v. Schultz, 474 S.W.2d 804 (Tex.Civ.App. San Antonio 1971, no writ), the disputed items are not entitled to the "tools of the trade" exemption under § 42.002(a)(4) of the Texas Property Code.
The Debtor argued that because of the 1973 Amendment to the Texas personal property exemption statute, § 42.002(a)(4), Simmang and Davis, previous state case law regarding restaurant equipment, no longer constitute authoritative precedent. Thus, under Texas Property Code § 42.002(a)(4) as amended in 1973 and outlined by this court's recent decision, In re Legg, 164 B.R. 69 (Bankr.N.D.Tex.1994), the items of Debtor's personal property used in her restaurant business constitute tools, equipment or apparatus and, therefore, are exempt under state law.
STATUTE
TEX.PROP.CODE ANN. § 42.002 (Vernon Supp.1995) states in pertinent part:
(a) The following personal property is exempt under Section 42.001(a):
. . . .
*104 (4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession.
DISCUSSION
The Debtor cites this court's opinion in Legg for the proposition that the "use test" applied in Legg is applicable to the facts in this case. The "use test" set out in England v. First Nat'l Bank (In re England), 22 B.R. 389 (Bankr.N.D.Tex.1982), exempts those items which allow a debtor to conduct his trade or profession in approximately the same manner after bankruptcy as he did before bankruptcy. The "use test" has been applied in several decisions decided after the 1973 Amendment to § 42.002(a)(4). The Amendment substituted the word "used in a trade or profession" for "belonging to a trade or profession." The substitution has been interpreted by several courts, including this one, to remove the case-imposed requirement that tools of the trade be peculiarly adapted to the debtor's trade or profession. In Legg, this court held a Caterpillar front-end loader, a truck, and other equipment which the debtor regularly used for many years in his fertilizer business exempt from claims of creditors, even though the property was not peculiarly adapted to the debtor's fertilizer business. 164 B.R. at 73. In this case the Debtor asserts that the removal of the requirement should provide her with a result similar to this court's decision in Legg. Furthermore, the Debtor claims that the court should not follow Simmang and Davis in this case because both cases were decided prior to enactment of the 1973 Amendment.
In Simmang, the Texas Supreme Court held the restaurant property used by the debtor in carrying on his restaurant business not exempt under Article 2395, Subdivision 5, Revised Civil Statutes of Texas (1895) which states in pertinent part:
The following property shall be reserved to every family, exempt from attachment or execution and every other species of forced sale for the payment of debts, except as hereinafter provided:
. . . .
(5) All tools, apparatus, and books belonging to any trade or profession.
The Simmang court determined that keeping a restaurant was a "trade" within the meaning of the law. 112 S.W. at 1045. However, the court also stated that "such property does not come within the meaning of `tools' or `apparatus' as used in the exemptions. . . ." Id. at 1045 (quoting Frank v. Bean, 3 Willson, Civ.Cas.Ct.App. 258 (1886)). Thus, the Debtor's argument that Simmang does not supply authoritative precedent due to the 1973 Amendment fails because the Simmang court did not deny the exemption based on whether the property was peculiarly adapted to the restaurant trade. Instead, the court focused on the character of the claimed restaurant property, rather than focusing on its use or adaptability to the restaurant trade. It denied the exemption because the property used by a restaurant operator was not considered "tools or apparatus." The property claimed as exempt must first be considered a tool, equipment, book or apparatus, including boats and motor vehicles, before its use or adaptability to a trade or profession becomes relevant. Therefore, the 1973 Amendment to the statute would not affect the analysis illustrated in Simmang and does not render its holding ineffective as authoritative precedent. Therefore, to determine whether to allow an exemption to the Debtor, this court will consider whether the property used by the restaurant operator should fall within any of the categories of property exemptible by statute.
The Trustee cites the 1971 case, Davis v. Schultz, 474 S.W.2d 804, in which the San Antonio Court of Appeals decided the most recent reported case involving a claim to exempt property used in carrying on a restaurant business. The Davis court denied an exemption right in restaurant property almost identical to the items disputed in this case.[2] The Davis court, citing Simmang, held the property used in the operation of the appellant's restaurant business not exempt *105 from execution because it did not constitute "tools or apparatus." See Id. at 804.
However, the dissent in Davis, written by Justice Cadena, points out that although Simmang held that furniture used in keeping a restaurant does not come within the meaning of tools or apparatus as used in the statute of exemptions, no case has made an effort to examine the issue.
I am disinclined to accept a gratuitous statement merely because it was made three quarters of a century ago. The ex cathedra statement made in Frank is no more persuasive than the undisclosed reasoning on which we must, out of deference to its antiquity, assume that it was based.
Davis, 474 S.W.2d at 806 (Cadena, J., dissenting).
Finally, the Debtor cites In re Nash, 142 B.R. 148 (Bankr.N.D.Tex.1992) (farm equipment used in the business of farming exempted) and Legg (truck used in fertilizer business exempted) to illustrate the effects of the 1973 Amendment on the Texas exemption statute. This court does not rely on the cases cited by the Debtor because they do not pertain specifically to restaurant equipment. Thus, they are not applicable to the property at issue in this case.
It is clear, based on Texas case law, that courts have made a distinction between property used in a restaurant business and property used in other trades and professions. This court finds the previously mentioned distinction both discriminatory and no longer necessary. In Davis, the dissent appropriately questioned the logic and reasonableness of the differences associated with denying the "tools of the trade" exemption to restaurant operators while allowing it for similar property used in a different trade or profession.
It has never been satisfactorily explained why the baker's oven, counters and tables are exempt, Lopez v. Naegelin, 59 S.W.2d 844 (Tex.Civ.App. Beaumont 1933, no writ), but the stove, tables and counters of the cafe operator are not. We have never been told why an electric fan, occasional chairs and a magazine rack in a beauty shop are exempt, McGehee v. Smith, 163 S.W.2d 730 (Tex.Civ.App. Amarillo 1942, no writ), while an electric fan and tables in a restaurant are not. By what process do chairs and rugs, which are beyond the reach of the sheriff while they are in an attorney's office, McBrayer v. Cravens, Dargan & Roberts, 265 S.W. 694 (Tex. Comm'n App.1924, opinion adopted), become fair game for creditors when they are moved to a restaurant? Does a pool table, which is protected while it is part of the equipment of a pool hall, Harris v. Todd, 158 S.W. 1189 (Tex.Civ.App. Fort Worth 1913, no writ), lose its protected status if the operator of the pool hall installs a lunch counter? The same loss of exempt status would probably be the sad fate of an iron safe which is moved from the office of insurance agent, where it is exempt, Betz v. Maier, 12 Tex. Civ. App. 219, 33 S.W. 710 (Austin 1896, no writ), to a restaurant.
The construction given to the statute by our courts cannot be classified as a liberal construction. In view of the cases referred to in the preceding paragraph, this construction cannot be defended as either reasonable or sensible.
Davis, 474 S.W.2d at 806 (Cadena, J., dissenting).
Tracing the evolution of the Texas exemption statute, it is apparent that the Legislature continually expanded the statute to cover more property. Texas exemption statutes should be liberally construed. See, e.g., In re Peters, 91 B.R. 401 (Bankr. W.D.Tex.1988); 17 Tex.Jur.3d Exemptions, § 5 (1982). Thus, under a more modern and inclusive approach, the property used in a restaurant should be considered "tools of the trade" and entitled to exemption under § 42.002(a)(4).
From previous case law it appears that the discriminatory treatment of the restaurant operator is based on a rationale that has prevented an exemption of property used by hotel operators in their business. In Heidenheimer Bros. v. Blumenkron, 56 Tex. 308 (1882), the Texas Supreme Court held that the exemption of household and kitchen furniture, applicable to a family, did not apply to furniture which was not "on hand and used" *106 by the family claiming the exemption.[3] The court stated that it was "not reasonable that one hundred and sixteen mattresses and forty-six bedsteads should be exempted for a private family." 56 Tex. at 314-315.
Similarly, in another 1882 decision, Bond v. Ellison, 2 Posey Unrep.Cas. 387 (Tex.Com. Ct.), referring to furniture kept in a hotel, the court stated that the exemption of household furniture applied only to "household and kitchen furniture of a family, used by them as a family." 2 Posey Unrep.Cases at 388. Thus, these two cases were decided on the premise that property claimed as exempt should be reasonably necessary for and utilized by the family claiming the exemption.
Previous Texas exemption statutes contained a clause that made property eligible for exemption if it was "reasonably necessary for the family or single adult." TEX.PROP. CODE ANN. § 42.002(3) (Vernon 1984). Inclusion of this clause signified the Legislature's reluctance to allow, for example, 1,000 beds to be claimed as exempt by a hotel operator or 10 tables and 300 cups to be claimed as exempt by a restaurant operator because the average family would not require such large quantities of the same items.
Since the decisions in Heidenheimer and Bond, the Legislature, in a 1991 Amendment, broadened the Texas exemption statute by deleting the requirement that tools of the trade be "reasonably necessary for the family." This court interprets the change as a signal to the courts to focus less on whether the property can be utilized by a family in its individual and private capacity and more on whether the property is necessary to carry on the business. The property claimed by the Debtor: booths, a cash register, plates, platters, knives, forks, spoons, tables, chairs, and glasses, are all used by restaurant operators and are all necessary to carry on the business. The number of each item and its use to a private family should not be considered in determining whether an exemption should be allowed. Thus, under a more modern and inclusive approach this court finds the exemption should be allowed.
The statute considered by the Heidenheimer and Bond courts contained no monetary limit on the amount of property that could be claimed as exempt. Thus, these courts may have been concerned with the possibility that the statute could be used to create a windfall for the operator of a large restaurant or grand hotel, based on the potential for large quantities being claimed as exempt. Denying the exemption to restaurant operators on this basis is necessary under the 1991 Amendment to the statute which established a new monetary limitation preventing a family from claiming an exemption that exceeds $60,000. Limiting the value of exemptible property to $60,000 prevents a windfall and eliminates the remaining reason for denying the exemption.
The issue ignored in Heidenheimer and Bond is that the beds of a hotel and, similarly, the tables and plates of the restaurant are the tools, equipment, and apparatus of the respective owners and are necessary to carry on the business as done before the attachment, execution or other species of forced sale. A restaurant is a place which serves meals to the public and, thus, would not be successful without the items claimed by the Debtor. Therefore, because each item claimed by the Debtor is used regularly to perform its function of providing food to the public it is necessary to carry on the business and must be exemptible. Finally, this court finds no rational basis for denying an exemption in the claimed restaurant property which would otherwise be exemptible in a different trade or business. Therefore, the property claimed by the Debtor falls within the meaning of tools and apparatus and is exemptible under the statute.
CONCLUSION
Based on Amendments made to the Texas exemption statute, which significantly change its meaning from the statute considered by the courts in Simmang and Davis, this court finds that the disputed items used in the Debtor's restaurant business are entitled to *107 the "tools of the trade" exemption under § 42.002(a)(4) of the Texas Property Code.
ORDER ACCORDINGLY.[4]
NOTES
[1] This court has jurisdiction of this matter under 28 U.S.C. § 1334(b), 28 U.S.C. § 157(a), and Miscellaneous Rule No. 33 of the Northern District of Texas contained in Order of Reference of Bankruptcy Cases and Proceedings Nunc Pro Tunc dated August 3, 1984. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(1), (b)(2)(B).
[2] The property denied exemption in Davis v. Schultz included the following: 20 tables, 72 chairs, a cash register, glassware, silverware, an ice machine, a grill, an oven, a refrigerator, etc.
[3] In this case the Texas Supreme Court did not consider the possibility of exempting this property under the clause of the statute exempting tools, apparatus or books belonging to any trade or profession.
[4] This Memorandum shall constitute Findings of Fact and Conclusions of Law pursuant to FED. R.BANKR.P. 7052 which is made applicable to Contested Matters by FED.R.BANKR.P. 9014. This Memorandum will be published. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1342113/ | 87 S.E.2d 14 (1955)
242 N.C. 78
Annie GREEN
v.
PATRIOTIC ORDER SONS OF AMERICA, Inc.; Funeral Benefit Association of the State Camp of North Carolina, Patriotic Order Sons of America, Inc.
No. 381.
Supreme Court of North Carolina.
April 13, 1955.
*16 John Hugh Williams, Concord, for plaintiff appellant.
Hugh G. Mitchell, Statesville, Hartsell & Hartsell, William L. Mills, Jr., Concord, for defendant appellee.
WINBORNE, Justice.
Upon the stipulated facts of the case in hand, as shown in the record on appeal, and as hereinabove set forth, two questions arise for decision on this appeal: (1) Was Green "over the age of fifty years" on 20 June, 1944, the date on which he was reenrolled as a member of a Funeral Benefit Association within the meaning of the bylaws of the association?
(2) If so, did the Funeral Benefit Association waive such age requirement?
The first question merits an affirmative answer, and the second a negative one.
In connection with the first question, admittedly on 20 June, 1944, Green had passed his fiftieth birthday by four months and eight days. But appellant contends that Green was "not over fifty years of age" until he reached his fifty-first birthday. *17 On the other hand, appellees contend that Green was "over fifty years of age" after he had passed his fiftieth birthday.
Appellant cites in support of her position two cases decided by the Supreme Court of Oklahoma, Watson v. Loyal Union Life Association, 143 Okl. 4, 286 P. 888, and Wilson v. Mid-Continent Life Ins. Co., 159 Okl. 191, 14 P.2d 945, 84 A.L.R. 386, and Annotations 84 A.L.R. 389, also 67 C.J.S. p. 541, 29 Am.Jur. 454, Insurance, § 558.
Appellees cite in support of their position the case of Bay Trust Co. v. Agricultural Life Ins. Co., 279 Mich. 248, 271 N.W. 749.
And upon examination of the annotations and texts above cited, it appears that the two Oklahoma cases and Allen v. Baird, 208 Ark. 975, 188 S.W.2d 505, are the bases for the text that "it has been held generally that a person is not over a specified age in years until he has passed his birthday next beyond the age specified," [67 C.J.S. p. 541] as contended for by appellant. The principle so stated is not convincing.
Moreover, the Michigan case, supra, is the basis for the text that "it has been stated that a person is over the age of sixty years when he has lived in excess of sixty calendar years" as contended by appellees. This principle is consonant with the views of this Court.
However neither party cites a case, nor has this Court found any in this State, treating of the particular question thus raised.
Statutes of a kindred nature, in this State, and decisions of this Court pertaining to related matters, lend light to the subject, and point the way to a reasonable and satisfactory conclusion.
In this connection it is appropriate to note that the words "over" and "years" in the phrase "not over fifty years of age" have ordinary meaning, and are in common use. "Over" means "beyond or above, or in excess of a certain quantity or limit; as, boys of twelve years and over." 67 C.J.S. p. 540.
And in respect to the word "year" it is noted that our General Assembly has adopted appropriate rules for construction of statutes, among which is G.S. § 12-3, that "In the construction of all statutes the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly, or repugnant to the context of the same statute, that is to say * * *
"3. * * * The word `month' shall be construed to mean a calendar month, unless otherwise expressed; and the word `year,' a calendar year, unless otherwise expressed; * * *."
And this Court has held that a calendar month contains the number of days asscribed to it in the calendar, varying from twenty-eight days to thirty-one. State v. Upchurch, 72 N.C. 146. The Court has also held that the word "year" will be interpreted to mean twelve calendar months. Muse v. London Assurance Corp., 108 N.C. 240, 13 S.E. 94. See also Shaffner v. Lipinsky, 194 N.C. 1, 138 S.E. 418.
Moreover it is significant that the General Assembly of North Carolina has enacted legislation pertaining to fraternal benefit societies, Article 28, Subchapter VII, Chapter 58, of General Statutes, in Section G.S. § 58-279 of which it is declared that "Any society may admit to beneficial membership any person not less than sixteen and not more than sixty years * * *."
In interpreting this statute, manifestly the definition of the word "year" as set out in the statute, G.S. § 12-3(3) would be appropriate. Likewise in interpreting a by-law of a funeral benefit association, the word "year" should have like meaning.
Therefore this Court holds that when a person reaches his fiftieth birthday he would have lived fifty calendar years, of twelve calendar months each. Hence after his fiftieth birthday he would be over fifty years of age.
*18 Now, as to the second question. "Waiver is the intentional relinquishment of a known right. It is usually a question of intent; hence knowledge of the right and an intent to waive it must be made plainly to appear. * * * `There can be no waiver unless so intended by one party and so understood by the other, or unless one party has so acted as to mislead the other.' 2 Herman on Estoppel, § 825." Brady v. Funeral Benefit Ass'n, 205 N.C. 5, 169 S.E. 823, 824.
In the light of the by-laws Article VI, Sec. 3, Article XII, Section 2, and Article XVII, Section 1, hereinabove quoted, it is clear that the Funeral Benefit Association has not waived the age requirement as to Green.
For reasons stated the judgment below is hereby
Affirmed.
BARNHILL, C. J., took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345495/ | 9 Ariz. App. 134 (1969)
449 P.2d 971
The STATE of Arizona, Appellee,
v.
Valentine de ANDA, Appellant.
No. 1 CA-CR 167.
Court of Appeals of Arizona.
January 30, 1969.
Rehearing Denied February 28, 1969.
Review Denied April 1, 1969.
*135 Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.
Ross Anderson, Phoenix, for appellant.
THURMAN, Judge of the Superior Court (retired).
In this criminal case the State of Arizona charged the Appellant, Valentine de Anda, with possession of heroin and possession of marijuana. The Appellant was arrested with his wife in Phoenix, Arizona, after the execution of a search warrant disclosed alleged heroin and marijuana in his home. The Appellant plead not guilty and filed several motions to suppress the evidence obtained as a result of the search warrant. Trial was held without a jury and the Appellant was found guilty on each count and was sentenced to from two to three years at the Arizona State Prison, each sentence to run concurrently. The Appellant appeals the judgment and the sentence.
STATEMENT OF FACTS
A police officer for the City of Phoenix, on October 5, 1966, pursuant to information he allegedly received from a secret confidential informant obtained from the East Phoenix Justice of the Peace a search warrant which directed him to search the home of the Appellant located at 1119 East Buckeye Road in Phoenix, Arizona. At approximately 9:30 p.m. that night, Officer Quinonez along with eight other law enforcement officers executed the search warrant at the home of the Appellant. They found what they believed to be heroin and marijuana. The Appellant and his wife were arrested for possession of marijuana and heroin and possession of marijuana and heroin for sale.
At the preliminary hearing the charge of possession of heroin and marijuana for sale was dismissed. The Appellant was bound over to Superior Court on the remaining charges. He presented a motion to suppress in Superior Court and after a considerable delay this motion was denied. A trial without a jury was held. Just prior to the trial commencing a new motion to suppress on additional grounds and authority was presented to the Court. This motion was taken under advisement and the trial proceeded. At the conclusion of the State's case, the Appellant insisted that there be a ruling on his motion to suppress and his motion for directed verdict. Both matters were taken under advisement.
From there on the Transcript of the Proceeding is very hazy and indefinite.
The Court by a minute entry found against the Appellant on the motion to suppress and motion for directed verdict and found the Appellant guilty of Count One and Count Two of the Information, during Appellant's absence from the Court. A motion for new trial was presented but was denied. The Appellant was sentenced to from two to three years at the Arizona *136 State Prison on each count to run concurrently.
The Appellant has presented to us the following questions for review:
1. Can an affidavit for search warrant which does not set out reliability of informant support a search warrant?
2. Can an affidavit for search warrant which does not set out facts that contraband is in a home support search warrant for residence?
3. Does failure to adhere to statutory procedural requirements in disposal of seized property render such material inadmissible?
4. Does failure to adhere to statutory procedural requirements that an affidavit must be made on return of inventory on search warrant render such material inadmissible?
5. Whether the trial court erred in finding Appellant guilty in his absence.
6. Whether the trial court erred in entering a finding of guilty in absence of evidence being presented by appellant after denial of motion for directed verdict at close of State's case.
We find from the record in this case that the said police officer in application for the search warrant related to the Justice of the Peace the following facts.
That the officers of the Phoenix Police Department had the premises at 1119 East Buckeye Road address, the bar and the house, under surveillance for some time; that they had seen known users of heroin and marijuana enter this bar house; that further they had had information that the Defendant de Anda was dealing in marijuana and heroin for some time; that the police officer further informed the Justice of the Peace that the confidential informant to whom he had talked had just come from and seen de Anda bring heroin out of the house and into the bar; and also that this informant had previously given information to Officer Quinonez which had led to nine arrests and confiscations of contraband and also to three convictions out of these nine arrests; and that at least the other six cases out of nine arrests, were still pending.
That within the past two days, the informant had seen de Anda bring marijuana from the rear house into the bar and that on previous occasions, he had personally seen de Anda in the house at 1119 East Buckeye Road, with marijuana.
This information was not accidental, fortuitous, occasional, uncertain or indefinite. We find it to be definite, with design and plan.
Immediately after the police officer had given the above information to the Justice of the Peace he was then placed under oath by the Justice of the Peace and testified as to the truth of the affidavit and the search warrant.
The search warrant contained the address of the premises to be searched, which premises were then set forth in the information given to the Justice of the Peace by the police officer. Likewise the affidavit contained matters referring to the information given by the police officer to the Justice of the Peace.
Taking the whole picture into consideration we find the search warrant was legally issued and therefore the search of the premises in question was legal.
Therefore, the evidence so obtained was not inadmissible.
The Appellant raises the question in this appeal that: Does failure by the Justice of the Peace to follow the statutory procedure on disposal of the property taken by search warrant render it invalid? We feel it might in some cases, but not in this case for the Justice of the Peace never lost control of the said property. The officers to whom the Justice of the Peace delivered the many separate exhibits of narcotics were her agents for a specific purpose.
*137 We find that the actions of the Justice of the Peace in this matter were logical and proper as well as necessary.
It is clear from the record that there were a great number of items taken under the authority of the search warrant and each of said items were read off to the Justice of the Peace who inspected them and the items were then marked down on the search warrant. This was all done in the presence of the Justice of the Peace after which she ordered the police to take the items for safekeeping and also to turn them over to the chemist.
There is nothing in the record to show that the items had been tampered with in any way whatsoever before the trial except to be subjected to proper chemical tests.
We therefore find that the manner in which the Justice of the Peace handled the said items was legally done.
As to Appellant's Question No. 4: "Does failure to make affidavit on inventory void search warrant?"
Since the Justice of the Peace personally examined each item and was present at the time they were marked upon the search warrant after the items had been examined by the Justice of the Peace and she signed the return, an affidavit under this fact situation would have been superfluous. In fact the detailed way the matter was handled was more than tantamount to an oath under the affidavit.
So far the Appellant has been grasping at floating straws, but as to his question No. 5 we feel he has grasped a floating log upon which to survive.
We find that the trial court did err in finding the Appellant guilty in his absence as the Defendant should have been present in the Court at the time of the finding.
We also find that the motion for a directed verdict or for a finding of not guilty should have been ruled upon and thereafter the Defendant should have been given the election to rest or to proceed with his evidence.
We therefore rule that the Appellant is entitled to a new trial and such is ordered and granted.
CONCURRING:
DONOFRIO, C.J., and CAMERON, J., concur.
NOTE: Judge HENRY S. STEVENS having requested that he be relieved from consideration of this matter, Judge E.R. THURMAN was called to sit in his stead and participate in the determination of this decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1159478/ | 461 P.2d 962 (1969)
Gilbert Eugene STONE, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.
No. A-14455.
Court of Criminal Appeals of Oklahoma.
September 24, 1969.
Sam J. Goodwin, Pauls Valley, for plaintiff in error.
G.T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.
*963 MEMORANDUM OPINION
BRETT, Presiding Judge.
Plaintiff in error, Gilbert Eugene Stone, was charged in the County Court of Garvin County with the offense of Operating A Motor Vehicle While Under the Influence of Intoxicating Liquor, was tried by a jury, found guilty and his punishment was fixed at a fine of fifty dollars ($50.00), and confinement in the county jail for a period of 180 days. Judgment and sentence was imposed on May 24, 1967, from which judgment and sentence plaintiff in error perfected his appeal to this Court. Plaintiff in error will hereafter be referred to as defendant, as he appeared in the trial court.
Defendant testified in his behalf and denied that he was driving under the influence of intoxicants; but he did admit that he and his friend had been drinking beer and wine during the day. Defendant's friend, the other man found sleeping in the rear seat of the overturned automobile, testified also that the two had been hunting and had drunk beer and wine, during the day. The State's case set forth that defendant was driving while under the influence of intoxicants and for that reason his car overturned on the county road and ended up in a bar-ditch. Defendant's explanation was that because he was sleepy and the road was muddy, his small Simca car overturned and went into the ditch when it skidded. Clearly there was a conflict of testimony for the jury to consider. In this case that conflict was resolved against defendant, in that the jury returned a verdict of guilty against defendant.
Defendant's complaint concerning his arrest, as being illegal, comes too late at this stage of the proceedings, since no question concerning the legality of arrest has heretofore been made. The record also fails to reflect any timely objection thereto having heretofore being entered by defendant. Where no timely objection is made to challenge the legality of arrest, prior to the time a defendant enters his plea to the charge, the defendant waives any objection thereto. This Court recited in Hoskins v. State, Okl.Cr., 286 P.2d 293 (1955):
"This court is committed to the rule that where a defendant pleads to the merits of a criminal action he waives all objections to the legality of his arrest." See also: McGilvery v. State, 50 Okl.Cr. 376, 298 P. 312; and, Keeler v. State, 24 Okl.Cr. 206, 217 P. 228.
Defendant's demurrer to the evidence appears to be premised on two principal facts: That the admissibility of the wine bottle, found in the front seat of the *964 car was error; and the fact that defendant was found asleep in his overturned automobile, in a bar-ditch. However, in Willaford v. State, 97 Okl.Cr. 247, 261 P.2d 630 (1955), and Moran v. State, 95 Okl.Cr. 6, 237 P.2d 920 (1951), this Court held that a partially filled bottle of liquor found in the automobile of a defendant is admissible, as circumstantial evidence, against the driver in a prosecution for driving while intoxicated. The fact that defendant was asleep in his overturned car was another circumstance concerning the charge which was presented to the jury.
Clearly a question of fact, based upon circumstantial evidence, was presented to the jury. The jury chose to accept the State's contention that defendant had been drinking, and was driving while under the influence of intoxicants when his car overturned. Several of the State's witnesses testified that in their opinion defendant was intoxicated when he was removed from the car. There is no doubt in the Court's mind but that there was sufficient evidence presented to submit the case to the jury. In Linzey v. State, Okl.Cr., 302 P.2d 510 (1956), this Court said:
"Where there is any competent evidence reasonably tending to sustain the allegations of the information, the court should not sustain a demurrer to the evidence."
Having reviewed the record before the Court in this case, we are of the opinion that defendant received a fair trial and that the errors complained of are not sufficient to justify reversing defendant's conviction. However, we are of the opinion that the proper administration of justice in this particular case warrants a modification of the sentence imposed on the defendant. There appears little doubt that the prosecutor's cross-examination of defendant, concerning defendant's previous pleas of guilty, to being drunk, were couched in such a manner as to cause the defendant to appear worse than he was actually proved to be. Therefore, we believe such interrogation without proof caused the jury to assess an excessive sentence under the facts of this case. Therefore, the defendant's sentence should be modified.
It is therefore the order of this court that the judgment and sentence imposed on defendant in Garvin County Court case number 9529, on the 24th day of May, 1967, imposing a fine of fifty dollars ($50.00) and confinement in the county jail for one hundred and eighty (180) days, should be and the same is hereby modified to a fine of fifty dollars ($50.00) and confinement in the county jail for a period of thirty days (30), and as modified the judgment and sentence is affirmed.
Judgment and sentence, as modified, affirmed.
BUSSEY and NIX, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1237803/ | 442 N.W.2d 73 (1989)
Cynthia THOMAS, Appellee,
v.
Diane SOLBERG, Appellant.
No. 88-1092.
Supreme Court of Iowa.
June 14, 1989.
Michael J. Coyle and Norman J. Wangberg of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellant.
T. Todd Becker of the Tom Riley Law Firm, P.C., Cedar Rapids, for appellee.
Considered by HARRIS, P.J., and LARSON, SCHULTZ, LAVORATO, and NEUMAN, JJ.
LAVORATO, Justice.
In a partial settlement of a comparative fault case with two of three defendants, the plaintiff received $75,000. The jury ultimately found that the settling defendants were liable for less than this amount. In these circumstances does Iowa Code chapter 668 (1985) (comparative fault) permit the district court to apply the pro tanto credit rule thereby allowing the nonsettling defendant the benefit of the favorable settlement? The district court did not think so, nor do we. We affirm.
I. On November 16, 1985, Cynthia Thomas, the plaintiff, was injured in a three-car collision. Following the collision, Thomas sued Diane Solberg and Steven White, the drivers of the other two cars. *74 She also sued Sheila White, the owner of the car Steven was driving.
Before trial Thomas settled with the Whites for $75,000. Thomas then proceeded to trial against Solberg only.
The jury assigned 49% of the fault to Steven White and 51% to Solberg, and fixed Thomas's damages at $108,117.31. Apparently, Steven and Sheila White were treated as one party for purposes of allocating fault. See Iowa Code § 668.3(2)(b).
On November 10, 1987, the district court entered judgment against Solberg in the amount of $55,139.83 (51% X $108,117.31) together with interest from the date of the petition. After the court had ruled on posttrial motions, Solberg tried to satisfy this judgment by paying $43,994.28 into the clerk's office. This last amount was calculated as follows:
$108,117.31 Total damages fixed by jury
less 75,000.00 Credit for settlement with the
___________ Whites
$ 33,117.31
plus 10,876.97 Accrued interest on $55,139.83
___________ judgment from filing of petition
$ 43,994.28 Amount paid into clerk's office
Thus, Solberg attempted to apply a dollar-for-dollar credit for the settlement with the Whites against the total damages, thereby reducing the judgment against her.
Thomas accepted the $43,994.28 but, instead of filing a full satisfaction of judgment, she filed only a partial satisfaction. In the partial satisfaction document, Thomas stated that as of January 16, 1988, $22,008.47 together with court costs and interest remained unsatisfied. She calculated the unsatisfied portion as follows:
$55,139.83 Judgment against Solberg only
plus 10,862.92 Accrued interest on $55,139.83
__________ judgment from filing of petition
$66,002.75 Total
less 43,994.28 Payment by Solberg
__________
$22,008.47 Portion of judgment unsatisfied
Solberg then filed a motion pursuant to Iowa Rule of Civil Procedure 256, seeking an order that would require a full satisfaction of judgment according to her calculations. In her brief in support of the motion, Solberg contended that the pro tanto credit rule was still the law, notwithstanding enactment of Iowa Code chapter 668, Iowa's comparative fault statute.
The district court denied the motion, concluding that the Iowa legislature had intended to eliminate the pro tanto credit rule in comparative fault cases. The court then applied what is known as the proportionate credit rule. Solberg appeals from this ruling. She again contends that the pro tanto credit rule applies to comparative fault cases, at least in those cases in which a settlement results in the plaintiff receiving more than the verdict.
II. Had there been no settlement, Thomas's recovery would have been $108,117.31, the amount of damages fixed by the jury against all the defendants. According to the district court's ruling, Thomas would receive $130,139.83, or about $22,000 more than the jury allowed.
Solberg contends that she, rather than Thomas, should receive the benefit of this favorable settlement; otherwise, our long standing policy reflected in the pro tanto credit rule would be frustrated. That policy provides that the plaintiff should receive no more than has been lost as the result of some tortious act. See Greiner v. Hicks, 231 Iowa 141, 146-47, 300 N.W. 727, 730-31 (1941). In effect the policy is seen as prohibiting more than one recovery. Thus, according to the pro tanto credit rule every dollar of settlement should be credited to any recovery against a nonsettling defendant. Id.; accord Wadle v. Jones, 312 N.W.2d 510, 512 (Iowa 1981).
The narrow question we are to decide is whether Thomas or Solberg is entitled to the benefit of the favorable settlement with the Whites. The answer depends upon whether Iowa Code chapter 668 permits us to apply the pro tanto credit rule thereby denying Thomas the benefit of the favorable settlement. For the reasons that follow, we conclude that it does not.
As the commentators have pointed out, the states have not uniformly defined the effects of a partial tort settlement, which we have here. See, e.g., Harris, Washington's Unique Approach to Partial Tort Settlements: The Modified Pro Tanto Credit and the Reasonableness Hearing *75 Requirement, 20 Gonz.L.Rev. 69, 73 (1984/85). It has been suggested that any jurisdiction enforcing joint and several liability and contribution among joint tortfeasors must address the following four fundamental issues in the context of partial settlements:
1. The amount of the nonsettling defendant's credit that reduces the [plaintiff's] award against [that defendant];
2. Whether the settling defendant is discharged from all future liability for contribution;
3. Whether the settling defendant's right to seek contribution from a nonsettling defendant survives the settlement. If it survives, the manner of determining the gross amount that the later contribution action will apportion;
4. Whether either the settling defendant or nonsettling defendant retains the right to assert a vicarious liability claim, or other type [of] indemnity claim, against the other.
Harris, 20 Gonz.L.Rev. at 73-74. Chapter 668 has a modified joint and several liability provision and allows contribution among joint tortfeasors. See Iowa Code § 668.4 (joint and several liability does not apply to defendants found to bear less than 50% of total fault assigned to all parties); id. § 668.5 (right to contribution allowed). Thus, all four issues are relevant in any discussion of the effects of partial settlements of comparative fault cases in Iowa.
The first issuethe amount of the nonsettling defendant's credit that reduces the plaintiff's award against that defendant is squarely before us. To resolve it, states have devised credit rules based upon pro rata, pro tanto, or proportionate reductions of the plaintiff's ultimate recovery. No one rule, however, is a panacea, and each has substantial disadvantages. Harris, 20 Gonz.L.Rev. at 74.
As to the second issue, the enlightened approach is to recognize that the settling defendant must be discharged from all liability for contribution. Id. Our comparative fault statute is in accord with this approach. See Iowa Code § 668.7 (release, covenant not to sue, or similar agreement between claimant and a liable party discharges liable party from liability for contribution).
The suggested approach to the third issue is to allow the settling defendant who secures a release of a nonsettling defendant to assert a right of contribution against that defendant. Harris, 20 Gonz.L. Rev. at 74-75. Iowa has such a provision but allows the settling defendant to assert contribution only to the extent that the amount paid in settlement was reasonable. See Iowa Code § 668.5(2).
The fourth issue, which deals with the viability and postsettlement survival of defendants' indemnity claims, has generated various approaches, none of which, it is claimed, are adequate. Harris, 20 Gonz.L. Rev. at 75. Chapter 668 does not speak to this issue.
Returning to the three credit rules, we note that the pro rata credit rule reduces the nonsettling defendants' liability by an amount equal to the number of settling defendants divided by the total number of defendants. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 430 (Tex.1984). For example, when a plaintiff settles with one defendant in a two-defendant case, the plaintiff's ultimate recovery is reduced by one-half. Similarly, in a three-defendant case, settlement with two defendants reduces the recovery by two-thirds.
In those jurisdictions applying the pro tanto credit rule, the plaintiff's recovery is reduced by the amount paid by the settling defendant. See Greiner, 231 Iowa at 146-47, 300 N.W. at 730-31; accord Wadle, 312 N.W.2d at 512. If, for example, the settling defendant pays $25,000 to settle, any subsequent recovery against the nonsettling defendant is reduced by that amount.
According to the proportionate credit rule, the plaintiff's recovery against a nonsettling defendant is reduced by the percentage of fault attributed to the settling defendant. See Duncan, 665 S.W.2d at 430. If the jury, for example, assesses total damages of $100,000 and assigns a percentage of fault of 25% to the settling defendant, the $100,000 is reduced by 25%.
*76 In Glidden v. German, 360 N.W.2d 716, 718 (Iowa 1984), and in subsequent cases we have, we think, correctly labeled one rule as "pro tanto" and have contrasted it with one that we have perhaps incorrectly labeled as the "pro rata" rule. The label "pro rata" properly applies to the rule described by the Texas court in Duncan, 665 S.W.2d at 430. The rule we called "pro rata" in Glidden and in subsequent cases should more properly be called the "proportionate credit" rule, since the advent of comparative fault. As has been suggested,
[a]lthough the concepts are not unrelated, such conceptual imprecision should be avoided. The pro rata rule involves a fixed, proportionate reduction. However, the term "pro rata" should be limited to situations involving undifferentiated, numerical shares. The term "proportionate" is descriptive of shares based on an apportionment of causal fault.
Harris, 20 Gonz.L.Rev. at 79 n. 24 (citation omitted).
The Uniform Comparative Fault Act drafted in 1977 utilizes the proportionate credit rule in partial settlements of comparative fault cases. Harris, 20 Gonz.L.Rev. at 99. Except for some provisions not pertinent here, Iowa Code chapter 668 closely parallels the Uniform Comparative Fault Act. Sections 6 and 2 of the Uniform Act embody the proportionate credit rule. See Unif.Comparative Fault Act § 6, 12 U.L.A. 52 (Supp.1989). Iowa Code section 668.7 is the counterpart of section 6, and Iowa Code section 668.3 is the counterpart of section 2.
The following italicized language of section 668.7 plainly spells out that the plaintiff's claim is reduced by the settling defendant's equitable share of the obligation:
A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person [plaintiff] against other persons [nonsettling defendants] is reduced by the amount of the released person's [settling defendant's] equitable share of the obligation, as determined in section 668.3, subsection 4.
Iowa Code § 668.7. The first sentence of this section is also clearthe nonsettling defendants are not to have any of their liability discharged because a plaintiff makes a good settlement. This section does not provide for any exceptions.
The "equitable share of the obligation" referred to in the above italicized language is the percentage of fault assigned to the settling defendant by the trier of fact. This is made clear by the following italicized language in Iowa Code section 668.3:
2. In the trial of a claim involving the fault of more than one party to the claim, including third-party defendants and persons who have been released pursuant to section 668.7 [settling defendants], the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating all of the following:
a. The amount of damages each claimant will be entitled to recover if contributory fault is disregarded.
b. The percentage of the total fault allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under section 668.7 [settling defendant]. For this purpose the court may determine that two or more persons are to be treated as a single party.
3. In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party and the extent of the causal relation between the conduct and the damages claimed.
4. The court shall determine the amount of damages payable to each claimant by each other party, if any, in accordance with the findings of the court or jury.
Iowa Code § 668.3. The italicized language in sections 668.7 and 668.3 can be reduced to the following statement: the plaintiff's recovery against nonsettling defendants is reduced by the percentage of *77 fault allocated to settling defendants. This is clearly the proportionate credit rule.
The comment to section 6 of the Uniform Act reinforces the notion that the proportionate credit rule is central to the Uniform Act's treatment of partial settlements. Because Iowa Code section 668.7 is the counterpart of section 6, the comment is also relevant to the meaning of this Iowa provision. Illustration no. 11 (effect of release) in the comment notes:
A was injured through the concurrent negligence of B, C and D. His damages are $20,000. A settles with B for $2000.
The trial produces the following results:
A, 40% at fault (equitable share, $8000)
B, 30% at fault (equitable share, $6000)
C, 20% at fault (equitable share, $4000)
D, 10% at fault (equitable share, $2000)
A's claim is reduced by B's equitable share ($6000)....
[C's and D's] equitable shares of the obligation are $4000 and $2000 respectively.
It is true we have not faced a similar issue nor undertaken a similar analysis. Nevertheless, we have stated, without hesitation, that Iowa Code chapter 668 was intended to eliminate the pro tanto credit rule for tort actions tried after July 1, 1984. See, e.g., Kopsas v. Iowa Great Lakes Sanitary Dist., 407 N.W.2d 339, 339-40 (Iowa 1987); Glidden, 360 N.W.2d at 720. The plain meaning of Iowa Code sections 668.7 and 668.3 leaves us no choice but to impose the proportionate credit rule in all partial settlements of comparative fault cases, even though the settlement results in the plaintiff receiving more than the verdict. See Le Mars Mut. Ins. Co. v. Bonnecroy, 304 N.W.2d 422, 424 (Iowa 1981) (precise and unambiguous language is given its plain and rational meaning as used in conjunction with the subject considered); Iowa R.App.P. 14(f)(13) (to determine legislative intent we look to what the legislature said rather than what it should or might have said).
Other courts have imposed the proportionate credit rule in similar circumstances and have not been deterred because the settlement ultimately produced a result more favorable than the verdict. See, e.g., Doyle v. United States, 441 F.Supp. 701, 711 n. 5 (D.S.C.1977); Kussman v. City and County of Denver, 706 P.2d 776, 782 (Colo.1985); Rambaum v. Swisher, 435 N.W.2d 19, 23 (Minn.1989); Charles v. Giant Eagle Markets, 513 Pa. 474, 477-79, 522 A.2d 1, 2-3 (1987); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 429-32 (Tex. 1984).
In Duncan, the nonsettling defendant urged a contention similar to the one put forth here: giving the plaintiff the benefit of a favorable settlement would frustrate Texas's prior "one recovery rule." Operating under modified comparative fault, the Texas supreme court opted for the proportionate credit rule and refused to follow its prior one recovery rule. It gave a number of reasons for doing so, but we find the following most pertinent and persuasive:
[T]he one recovery rule was originally adopted because the courts could not conceive of allocating liability. Injuries were considered indivisible; therefore, a settling defendant could only offer to pay for the whole injury, not just his part. A settlement greater than or equal to the amount of damages ultimately found by the trier of fact left nothing to pay for. Consequently, the plaintiff had no remaining injury for which he could recover.
The reasoning behind the one recovery rule no longer applies. The system of comparative causation we adopt allows allocation of liability between the parties, even when the injury itself is indivisible. Because each defendant's share can now be determined, it logically follows that each may settle just that portion of the plaintiff's suit. The settlement does not affect the amount of harm caused by the remaining defendants and likewise should not affect their liability.
Duncan, 665 S.W.2d at 431 (citation omitted). Simply put, the proportionate credit rule is compatible with comparative fault; the one recovery policy underlying the pro tanto credit rule is not.
*78 In addition to logic, fairness also motivated the Duncan court:
A [proportionate] credit necessarily means that settling plaintiffs may recover more than the amount of damages ultimately determined, but they also may recover less. Plaintiffs bear the risk of poor settlements; logic and equity dictate that the benefit of good settlements should also be theirs.
Id. at 430; see also Rambaum, 435 N.W.2d at 23 (time to judge the fairness of the settlement agreement is at the time it is made).
Because the proportionate credit rule is not based, in whole or in part, upon the amount of the settlement, commentators also agree that under this rule
[t]he plaintiff profits from a wise settlement and suffers from a poor one. If the settling defendant pays more than his later established proportion of damages, the plaintiff, and not the nonsettling defendant, benefits. In a two-defendant case, the nonsettling defendant merely pays his proportionate share of the loss. The amount that the settling defendant pays is entirely irrelevant. For that reason, allocation of a settlement serves no useful purpose. In a proportionate system, the trier of fact's percentage determination on the merits, and not a pretrial judicial allocation of settlement value, sets the amount of the credit.
Harris, 20 Gonz.L.Rev. at 102; accord Wade, Multiple Tortfeasor Liability in Products Liability Suits, 55 Miss.L.J. 683, 703 (1985).
III. In summary, we hold that in partial settlements of comparative fault cases the proportionate, rather than the pro tanto, credit rule applies. This is so regardless of whether the plaintiff negotiates a partial settlement that ultimately results in the plaintiff receiving more than a jury or court award. In applying the proportionate credit rule, the district court simply credits the award against the nonsettling defendant with the settling defendant's equitable share of the total damages found by the trier of fact. This equitable share is determined by multiplying the total damages by the percentage of fault allocated to the settling defendant.
In this case, we conclude the district court properly applied the proportionate credit rule. Accordingly, the court was correct in overruling Solberg's Iowa Rule of Civil Procedure 256 motion. We therefore affirm.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1284290/ | 179 S.E.2d 493 (1971)
211 Va. 603
CITY OF NEWPORT NEWS
v.
DOYLE AND RUSSELL, INC., et al.
Supreme Court of Appeals of Virginia.
March 8, 1971.
*494 Robert V. Beale, City Atty., City of Newport News (Panos A. Yeapanis, Asst. City Atty., on brief), for plaintiff in error.
Robert F. Brooks, Richmond (B. Warwick Davenport, E. Milton Farley, III, Hunton, Williams, Gay, Powell & Gibson, Richmond on brief), for defendants in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
I'ANSON, Justice.
The City of Newport News filed its motion for judgment against the defendants, Doyle and Russell, Inc., and Federal Insurance Company, seeking to recover the sum of $53,182.50 allegedly due on a bid bond as a result of Doyle and Russell's failure to execute a contract awarded by the City and a performance bond for the construction of an incinerating plant.
In their grounds of defense the defendants admitted the submission of the bid to construct the plant and the refusal to execute a contract and performance bond and set up two affirmative defenses: (1) that the written proposal had never become operative or binding as a bid because one of the items priced in the bid was inadvertently stated at $100,000 less than intended, and the City had been notified of the mistake after the opening of bids and before the City's acceptance of the bid; and (2) that on these facts Doyle and Russell was entitled to rescission of its proposal.
The case was tried before a jury, and at the conclusion of all the evidence the court dismissed the jury stating that no questions of fact were involved. The court then sustained the defendants' affirmative defenses, held that the City was not entitled to recover on the bid bond, and entered final judgment for defendants. We granted the City a writ of error.
The crucial question presented on this appeal is whether the trial court erred in holding that because of a unilateral mistake in Doyle and Russell's bid, the defendants were entitled to cancellation of the bid bond accompanying the bid.
The facts are uncontroverted. In June 1967 the City advertised for sealed bids for the construction of an incinerating plant. The bids were opened at 2 p.m. on July 13, and the bid of Doyle and Russell, in the amount of $1,063,650, was the lowest of the three bids submitted, the other two being for $1,258,647 and $1,251,196.
Doyle and Russell's bid and the accompanying bid bond required of all bidders were submitted shortly before the 2 p.m. deadline. The figures were telephoned by J. C. Nance, Jr., chief estimator for this proposal, to Claiburn Lawrence, a company representative who filled in the official bid form as the figures for its twenty-nine separate items were relayed to him in a public phone booth near the Newport News City Hall.
After the opening of all the bids, Lawrence discovered that the amount of the bid for concrete work should have been $343,750 instead of $243,750, and he advised the City officials of the mistake.
On the same day, July 13, Doyle and Russell telegraphed the City that a mistake of $100,000 had been made in the concrete work quotation; that it was sending its back-up sheets to the City to show that the amount submitted in its bid was a mistake; *495 and that it was withdrawing its bid. Following its telegraphic notice to the City, Doyle and Russell sent a letter by registered mail explaining the error, and enclosed copies of its work sheets showing the correct figures.
On July 24, 1967, the City Council of the City of Newport News adopted a resolution accepting Doyle and Russell's bid of $1,063,650, and on the following day sent written notice that it had been awarded a contract for that amount.
The instructions to bidders on the official bid form contained these pertinent provisions:
"Proposals may be withdrawn before the date of opening thereof, but no Bidder may withdraw his Proposal within thirty days after the date of opening bids.
* * * * * *
"No plea of mistake in the bid shall be available to the Bidder for the recovery of his deposit or as a defense to any action based upon the neglect or refusal to execute a contract."
Under the terms of the bid bond executed by Doyle and Russell as principal and Federal Insurance as surety, defendants agreed that if the proposal of Doyle and Russell was accepted by the City, the principal would, within ten days after receipt of written notice of the contract award, execute a contract and a performance bond payable to the City; and that if Doyle and Russell failed to execute the contract and performance bond, the surety, Federal Insurance, would immediately pay to the City, upon demand, not as a penalty but as liquidated damages, 5% of the total bid submitted by the principal.
The City contends that a bidder's unilateral mistake in his bid for a public construction contract is not ground for rescission and release of the principal and surety on a bid bond. It concedes that there is a conflict in the authorities, but argues that the cases denying rescission represent the better reasoning. See A. J. Colella, Inc. v. Allegheny County, 391 Pa. 103, 137 A.2d 265 (1958); Modany v. State Public School Building Authority, 417 Pa. 39, 208 A.2d 276 (1965); Board of Edn., etc. v. Sever-Williams Co., 22 Ohio St.2d 107, 258 N.E. 2d 605, (reh. denied, June 3, 1970); Anno.: 70 A.L.R.2d 1370 (1960). The City also contends that the defendants are bound by the terms of the official bid form.
Defendants contend that where a bidder on a public construction contract makes a mechanical or clerical error, the bidder is entitled to the rescission of the bid and bid bond if it can establish that (1) the mistake is such that enforcement would be unconscionable; (2) the mistake relates to a material part of the consideration; (3) the mistake did not result from gross negligence; (4) prompt notice of the mistake was given; and (5) it is possible to place the other party in statu quo. Citing Conduit & Foundation Corp. v. Atlantic City, 2 N.J.Super. 433, 64 A.2d 382 (1949); M. F. Kemper Const. Co. v. City of Los Angeles, 37 Cal.2d 696, 235 P.2d 7 (1951); Annots.: 52 A.L.R.2d 792 (1957); 70 A.L.R.2d 1370 (1960), the cases there cited, and later cases.
In Virginia, no case involving facts similar to the case at bar has been heretofore decided.
An examination of the cases relied on by defendants reveals that only the case of Kemper, supra, presents facts quite similar to the case at bar. There the notice inviting bids and the official bid form stated that bidders "will not be released on account of errors." In affirming the judgment of the trial court allowing rescission of the bid and cancelling the bid bond, a majority of the California Supreme Court said that the city could not enforce a bid bond against a contractor who refused to enter into a performance contract when the city knew prior to acceptance of the bid that it contained a material error; that the language that bidders "will not be released on account of errors" applied only to errors of judgment, not to clerical errors; and that *496 to deny relief in such cases would force the bidder to perform an agreement he had no intention of making. 37 Cal.2d at 703-706, 235 P.2d at 11-13.
In Colella, supra, relied on by the City, the contractor filed a suit in equity against the county seeking a cancellation and return of its bid bond because of a mechanical or clerical mistake. The county was notified of the mistake after bids were opened. Colella then requested permission to withdraw its bid. The request was refused and the contract was awarded to Colella. In affirming the judgment of the trial court against the contractor because the evidence sustained the finding that the clerical mistake in computation of the bid was unilateral and had resulted from negligence on the part of the contractor, the Supreme Court of Pennsylvania said that to permit a contractor to withdraw his bid after all the bids had been opened, "under the plea of a clerical mistake, would seriously undermine and make the requirement or system of sealed bids a mockery; it could likewise open wide the door to fraud and collusion between contractors and/or between contractors and the Public Authority." 391 Pa. at 107, 137 A.2d at 267.
In Board of Edn. v. Sever-Williams Co., supra, the board instituted its action against the contractor, Sever-Williams, and Federal Insurance Company, the surety, to recover the amount of the bid bond. Sever-Williams had submitted the lowest of three bids for the construction of a new high school. Shortly after the bids were opened the school board met, accepted the low bid, and awarded the contract to Sever-Williams. The board was notified before the contract was awarded that through inadvertance and mistake an item of $145,000 had been omitted from the bid, and that the company was withdrawing its bid. The Supreme Court of Ohio, in reversing the intermediate appellate court, said that although it may seem harsh to hold a bidder liable on its bid when it has actually made a mistake in the preparation of the bid, it was necessary to protect the sanctity of the bidding system as provided by statute; that when Sever-Williams made its offer it said exactly what it intended to say and it conveyed to the board exactly the meaning it intended to convey; that the mistake was one of computation wholly antecedent to the expressed and communicated offer; and that under these circumstances the bid bond was a contract enforceable against the bidder and the surety. 258 N.E.2d at 609-610.
Here Doyle and Russell agreed when its submitted its bid that it would not be withdrawn within 30 days after the date of the bid opening, and that "No plea of mistake in the bid shall be available to the Bidder for the recovery of his deposit or as a defense to any action based upon the neglect or refusal to execute a contract." The quoted language is not limited to a mistake of judgment. It plainly means any mistake in the bid, and includes a mechanical mistake. Thus it was within the contemplation of the parties that the risk of mistake in the bid was to be borne by the bidder. Manifestly, the purpose of the quoted language was to avoid the precise claim now advanced by the defendants. Cf. M.J. McGough Company v. Jane Lamb Memorial Hospital, D.C., 302 F. Supp. 482, 487 (1969).
When the City awarded the contract to Doyle and Russell the bid bond contract went into full force and effect. The obligation assumed by defendants under the bond was that in the event Doyle and Russell was awarded the contract and then failed to enter into a contract and give a performance bond, the amount of the bid bond would be forfeited to the City as liquidated damages.
The rule that courts do not favor forfeitures has no application to cases such as the one at bar and is never carried to the extent of relieving parties from the express terms of their own contracts. See Portsmouth v. Portsmouth Corp., 122 Va. 258, 262, 95 S.E. 278, 279 (1918); 10 McQuillin, Municipal Corporations, § 29.66, at 403-04 (3rd ed., 1966).
*497 While it might seem harsh to hold against a bidder who has actually made a clerical mistake in the preparation of its bid for its refusal to enter into the contract awarded to it and to give a performance bond, Doyle and Russell must be held bound by the express provisions of its contract stating that it will not rely on a plea of mistake for cancellation of its bid. To hold otherwise would be to ignore the terms of the official bid form, the provisions of the bid bond, and the purpose of requiring a bond to accompany a bid. It would also seriously jeopardize the sanctity of the system for bidding on public contracts and lead to the uncertainty and unreliability of bids. The system followed here for awarding such contracts saves the public harmless, as well as the bidders themselves, from favoritism or fraud in its varied forms.
For the reasons stated, we hold that the defendants are liable on the bid bond. Accordingly, the judgment of the court below is set aside and reversed, and judgment for $53,182.50 is here entered for the City against the defendants.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1885494/ | 179 B.R. 141 (1995)
In re Warren L. CASLAVKA, Debtor.
Bankruptcy No. 93-10188LC.
United States Bankruptcy Court, N.D. Iowa.
February 24, 1995.
*142 Joseph A. Peiffer, Cedar Rapids, IA, for debtor.
Morris L. Eckhart, Milroy and Eckhart, Vinton, IA, for Creditor Terra Intern., Inc.
Harry R. Terpstra, Trustee, Cedar Rapids, IA.
ORDER
PAUL J. KILBURG, Bankruptcy Judge.
On November 7, 1994, the above-captioned matter came on for trial pursuant to assignment. Attorney Joe Peiffer represented Debtor Warren Caslavka. Attorney Morris Eckhart represented Creditor Terra International, Inc. Harry Terpstra appeared as Trustee. The matters before the Court are: (1) Terra International's Objections to Statement of Intention, Statement of Affairs, Summary of Schedules and Schedules A-J; and (2) Trustee's Objections to Property Claimed Exempt by Debtor. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A, B).
STATEMENT OF THE CASE
Debtor claims three annuities exempt under Iowa Code sec. 627.6(8)(e). The parties' Joint Pretrial Statement narrows the objections by Terra International and Trustee to whether these annuities are exempt under that statute. Additionally, Debtor claims that the annuities are excluded from property of the estate pursuant to 11 U.S.C. § 541(c)(2).
Debtor is 73 years old and has health problems. He retired from his family-operated business, Cas Feed Store, Inc., in June 1986 at age 64. From that time until September 1990, Debtor received monthly payments from the Cas Feed Store, Inc. Profit Sharing Plan and Trust which was an ERISA-qualified plan. He had made contributions to the Plan as well as to a predecessor Pension Plan since 1971. In the fall of 1990 at age 69, Debtor purchased three annuities ("Annuities") which qualify as Individual Retirement Annuities under 26 U.S.C. § 408(b).
Debtor sold his business to his son upon retirement. Serious issues of mismanagement and wasting of business assets soon arose. Debtor ultimately decided to rollover the funds from the Profit Sharing Plan and Trust because of concerns that the Plan would be involuntarily terminated by his son, Lon Caslavka, and the funds used for other purposes. To preserve his only source of retirement revenue, Debtor terminated his interest in the Profit Sharing Plan in the fall of 1990. The funds were rolled over to these Annuities by a check from the Plan endorsed by the Plan Trustee, Lon Caslavka, for deposit directly to Jackson National Life which issued the Annuities to Debtor. The Plan was formally terminated by corporate resolution on June 26, 1991 to be effective September 30, 1991.
None of Debtor's three Annuities states that they are payable on account of illness, disability, death, age or length of service. Debtor's right to receive payments under the Annuities does not depend on his reaching any specified age. He was already retirement age and receiving retirement payments from the Profit Sharing Plan when he purchased the Annuities. Debtor began receiving payments from two of the Annuities when he was 69 and from the third when he was 70 years old. One of the Annuities provided for immediate payments. The other two provided various payment options and rights of withdrawals. Debtor has selected a payment option under each of the Annuities. The amounts of annuity payments from two of the Annuities are based in part on Debtor's age and gender.
ISSUES
Debtor argues that the Annuities are exempt under Iowa Code sec. 627.6(8)(e). In *143 the alternative, Debtor claims that the Annuities are not property of the estate pursuant to 11 U.S.C. § 541(c)(2). Terra International and Trustee assert that Debtor's unrestricted access to the Annuities makes them nonexempt and includable as property of the estate.
PROPERTY OF THE ESTATE, § 541(c)(2)
Before addressing the exemption issue, the Court must determine whether the property in dispute is property of the bankruptcy estate. Property of the debtor's estate is broadly defined in § 541 to include all the debtor's interests in property. However, § 541(c)(2) makes the following exception:
A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title.
The U.S. Supreme Court holds that a debtor's interest in an ERISA-qualified pension plan may be excluded from property of the bankruptcy estate pursuant to § 541(c)(2). Patterson v. Shumate, 504 U.S. 753, 764-66, 112 S.Ct. 2242, 2250, 119 L.Ed.2d 519 (1992). The Court found that the plain language of § 541(c)(2) requires the conclusion that "applicable nonbankruptcy law" refers not only to state spendthrift law but also to ERISA requirements. Id. at 757-58, 112 S.Ct. at 2246. Both ERISA and coordinate sections of the Internal Revenue Code (29 U.S.C. § 1056(d)(1) and 26 U.S.C. § 401(a)(13), respectively) impose restrictions on the transfer of a debtor's interest in a qualified plan. These restrictions are "enforceable" as required by § 541(c)(2). See In re Kunkle, No. 93-60077LW, slip op. at 4, 1993 WL 767974 (Bankr.N.D. Iowa June 4, 1993).
It is probable that the ERISA-qualified Profit Sharing Plan which was the source of the funds deposited in Debtor's Annuities would have been excludable under § 541(c)(2). As noted above, these Annuities qualify as IRAs. However, IRAs have no enforceable restrictions under any nonbankruptcy law. Velis v. Kardanis, 949 F.2d 78, 82 (3d Cir.1991). Therefore, IRAs are includable as property of the estate under § 541(c). Id. Once a debtor gains unrestricted access to funds in an ERISA-qualified plan, such funds do not qualify as a spendthrift trust under § 541(c)(2) and thus are not excludable from the estate. In re Reid, 139 B.R. 19, 21 (Bankr.S.D.Cal.1992) (debtor had unrestricted access to ERISA plan funds through prepetition termination of employment).
This Court concludes that Debtor's Annuities are includable as property of his bankruptcy estate. They contain no restrictions on transfer and are not subject to ERISA requirements. See Patterson, 504 U.S. at 762-64, 112 S.Ct. at 2249. When Debtor gained unrestricted access to the Profit Sharing Plan funds, they lost their status as ERISA-qualified such that § 541(c)(2) no longer applies.
EXEMPT AS PAYMENT "ON ACCOUNT OF AGE", SEC. 627.6(8)(e)
Debtor argues that even if the Annuities are property of the estate, they are exempt under Iowa Code sec. 627.6(8)(e). That section provides that a debtor may hold exempt from execution rights in:
A payment or a portion of a payment under a pension, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service. . . .
The Court must determine whether the Annuities are exempt regardless of their being funded by the Profit Sharing Plan. If the answer is no, the Court must determine whether the Annuities are exempt because they were funded by the Plan. That inquiry requires consideration of whether the lump sum distribution from the Plan was exempt and, if so, whether the proceeds of that lump sum in the Annuities are now exempt.
These determinations are made with a view toward the general rule that courts should construe exemption statutes liberally in favor of the debtor in light of the purposes of the exemption. In re Wallerstedt, 930 F.2d 630, 631 (8th Cir.1991); Chariton Feed & Grain, Inc. v. Kinser, 794 F.2d 1329, 1331 (8th Cir.1986) (applying Iowa law); Frudden Lumber Co. v. Clifton, 183 N.W.2d 201, 203 (Iowa 1971). The exemption of payments under a pension or similar plan is intended to *144 protect payments which function as wage substitutes after retirement, to support the basic requirements of life at a time when the debtor's earning capacity is limited. In re Pettit, 55 B.R. 394, 398 (Bankr.S.D.Iowa), aff'd, 57 B.R. 362 (S.D.Iowa 1985).
The Eighth Circuit Court of Appeals has addressed the applicability of Iowa Code sec. 627.6(8)(e) to IRAs. In In re Huebner, 986 F.2d 1222, 1225 (8th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 272, 126 L.Ed.2d 223 (1993), the court stated that the debtor's present right to receive payments from an IRA annuity did not depend on "illness, disability, death, age, or length of service." The court agreed with the District Court's conclusion that the debtor's access to and complete control over the timing of the annuity payments mean that the payments are not "on account of" age or length of service. Id. Therefore, the court held that the IRAs were not exempt. Id.
Mr. Huebner was 64 when he filed for bankruptcy and intended to begin receiving monthly payments when he turned 65. Id. at 1224. The court stated: "No payments have been made under Huebner's annuity contracts; rather, he is seeking to exempt the entire annuity corpus from which future payments will be made." Id. Mr. Huebner had personally purchased the IRAs several years prior to filing for bankruptcy. In re Huebner, 141 B.R. 405, 406 (N.D.Iowa 1992), aff'd, 986 F.2d 1222 (8th Cir.1993). Except for tax penalties for withdrawals prior to age 59½, Mr. Huebner had unrestricted access to the IRA funds. Huebner, 986 F.2d at 1225. The court stated that the IRA was essentially a bank savings account with favorable tax treatment. Id.
This Court in In re Matthews, 65 B.R. 24 (Bankr.N.D.Iowa 1986) (Melloy, J.), and In re Eggink, No. X89-01622S (Bankr.N.D.Iowa Jan. 30, 1990) (Edmonds, J.), also held that IRAs are not exempt under sec. 627.6(8)(e). The Court focused on the amount of control the debtor had over the annuity and whether access to the funds was restricted as to age, length of service, etc. Matthews, 65 B.R. at 26; Eggink, slip op. at 5. Both the debtors in these cases were under age 59½ and were not yet receiving payments. In Matthews, Judge Melloy specifically refrained from deciding whether a debtor over the age of 59½ would be entitled to claim IRAs exempt. Matthews, 65 B.R. at 26 n. 1.
Thus, IRAs are generally not exempt in Iowa under sec. 627.6(8)(e). However, the circumstances of this case require further inquiry. The features which distinguish this case from Huebner are that Debtor purchased his IRA Annuities 1) after he began receiving pension plan payments upon his retirement and 2) with funds rolled over from the ERISA-qualified Profit Sharing Plan. Thus, the payments he now receives are directly traceable to a pension or similar plan payable on account of age or length of service. The IRAs in Huebner were not similarly funded by an ERISA-qualified plan disbursement after retirement.
In order for the Annuities to be exempt, the lump sum distribution from the Profit Sharing Plan, which Debtor rolled over into these Annuities, must be determined to be exempt. Debtor was already receiving monthly payments from the Plan at the time he rolled over the funds to the Annuities in contemplation of termination of the Plan. It is undisputed that Debtor was receiving these monthly payments on account of age. The monthly payments were exempt under the language of sec. 627.6(8)(e) which exempts "rights in [a] payment or portion of a payment under a pension, annuity, or similar plan . . . on account of . . . age." The parties do not dispute that the ERISA-qualified Profit Sharing Plan is a "pension, annuity or similar plan" under the statute. See In re Flygstad, 56 B.R. 884, 888 (Bankr.N.D.Iowa 1986) (holding that profit sharing plan was "pension or similar plan" under the statute).
A significant but unresolved issue is whether lump sum distributions should be characterized as a "payment or portion of a payment" under a Plan "on account of age". In Patterson, the U.S. Supreme Court noted that a dispute exists regarding whether § 522(d)(10)(E), the Federal exemption for pension payments, applies only to "distributions from a pension plan that a debtor has an immediate and present right to receive, or to the entire undistributed corpus of the pension trust." 504 U.S. at 763 n. 5, 112 *145 S.Ct. at 2249 n. 5. The Court refused to express an opinion on the issue. Id. The Federal statute exempts:
(10) The debtor's right to receive
(E) a payment under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor . . .
11 U.S.C. § 522(d)(10)(E).
The Eighth Circuit has stated that sec. 627.6(8)(e) is limited to "`rights in' an annuity payment". Huebner, 986 F.2d at 224 (emphasis in original). It held that Iowa has no statute granting an exemption for all or any part of the undistributed corpus of an annuity contract. However, Iowa courts have held that sec. 627.6(8)(e) applies to all assets of the plan, not just to a present payment due. In re Pettit, 57 B.R. 362, 363 (S.D.Iowa 1985). In determining the applicability of sec. 627.6(8)(e) to a privately-purchased annuity, one court has noted that, like the Iowa insurance exemption, the statute does not say the pension payment exemption is contingent on an absence of a right to accept a surrender value. In re Lilienthal, 72 B.R. 277, 279 (S.D.Iowa 1987).
These cases can be reconciled with Huebner and Matthews which focused on the "on account of age" requirement of sec. 627.6(8)(e). Lump sum distributions from a pension plan which are not "on account of age", such as those made on termination of employment or termination of the plan prior to the time the debtor reaches retirement age, are not exempt under the statute. However, lump sum distributions upon retirement are payments on account of age the same as monthly payments upon retirement.
Cases which have considered whether lump sum distributions can be exempt under various exemption statutes tend to focus on the statutory language. As noted, the Federal statute exempts "rights to receive a payment" under a plan. This language does not allow exemption of an IRA funded by the rollover of funds from an exempt pension plan after termination of the plan according to In re Cesare, 170 B.R. 37, 39 (Bankr. D.Conn.1994). The court concluded that after the debtor receives the payment, the exemption is lost. Id.; In re Chapman, 177 B.R. 161, 162 (Bankr.D.Conn.1994). In re Summers, 108 B.R. 200, 202 (Bankr.S.D.Ill. 1989), stated that under § 522(d)(10)(E), there must be a "payment". It is the payment that is exempt, not the entire asset. Id.; In re Wilson, 54 B.R. 796, 798 (Bankr. E.D.Mo.1985) (holding that neither Federal nor Illinois statute permits exemption of debtor's entire interest in lump sum distribution). Once the debtor receives an ownership interest in the pension assets, the debtor no longer has a right to receive payment under the plan. In re McGoy, 86 B.R. 174, 176 (Bankr.E.D.Mo.1988).
However, the court in In re Donaghy, 11 B.R. 677, 680 (Bankr.S.D.N.Y.1981), allowed the debtor to exempt a lump sum distribution received upon retirement under the Federal statute. It held that the benefits constituted an identifiable sum which is a tangible reflection of the debtor's right to receive payments under a pension plan within the language and spirit of the statute. Id. While some cases have attempted to limit Donaghy, of all these cases (Cesare, Chapman, Summers, McGoy, Wilson and Donaghy), the only debtor who had already reached retirement age at the time of the lump sum distribution was the debtor in Donaghy. The other lump sum distributions were made because of termination of employment or termination of the pension plan.
Other courts have construed other state exemption statutes to find a right to exempt a lump sum payment from a pension plan. The Wisconsin statute exempts a debtor's interest in a pension plan and "any pension or other benefit" derived from the plan. In re Woods, 59 B.R. 221, 225 (Bankr.W.D.Wis. 1986). Woods held that the lump sum payment on termination of debtor's employment was exempt as "other benefit" under the statute. Id. In In re Solomon, 166 B.R. 832, 838 (Bankr.D.Md.), aff'd, 173 B.R. 325 (D.Md.1994), the court held that a lump sum payment from a pension plan, which the debtor had rolled over into an IRA, was exempt under the Maryland statute which *146 exempts "any interest" in a qualified retirement plan.
An IRA funded from a rollover from a pension plan account at age 55 was held exempt under the South Carolina exemption. In re Sopkin, 57 B.R. 43, 47 (Bankr.D.S.C. 1985). Like the Federal statute, the state statute exempted the "right to receive a payment" under the plan. Id. at 45. The court allowed the exemption because the debtor was more than 59½ years old and had the right to receive payments under the IRA. Id. at 47. As noted in Huebner, other states such as Tennessee and California exempt or refuse to exempt lump sum distributions based on specific language in their exemption statutes. Huebner, 986 F.2d at 1224 n. 5.
These cases teach that the result is often dependent on the language of the statute. Iowa's statute exempts a debtor's "rights in [a] payment or portion of a payment" under a pension or similar plan on account of age or length of service. This Court could find no other exemption statute which uses the language "payment or portion of a payment". Black's Law Dictionary defines "payment" separately from "part payment". Payment is "[the] fulfilment of a promise or the performance of an agreement." Black's Law Dictionary 1129 (6th ed. 1990).
In a more restricted legal sense payment is the performance of a duty, promise, or obligation, or discharge of a debt or liability, by the delivery of money or other value by a debtor to a creditor, where the money or other valuable thing is tendered and accepted as extinguishing debt or obligation in whole or in part.
Id. "Part payment" is separately defined as "[t]he reduction of any debt or demand by the payment of a sum less than the whole amount originally due."
Using these definitions, the use of "payment" first in sec. 627.6(8)(e) can appropriately be construed to mean the discharge of an obligation in its entirety. The use of the term "portion of a payment" therefore means discharge of an obligation in part. The addition of the language "or portion of a payment" is critical to the statutory analysis because it strongly implies that the first reference to "payment" authorizes complete payment from the pension plan if the other conditions are satisfied. In that regard, the Court recognizes that "on account of age" modifies both "payment" and "portion of a payment". Giving a plain language meaning to the foregoing definitions, the statute is properly construed to mean that the debtor may exempt complete or partial payments from the pension plan which are made on account of age.
Debtor's Exhibit M is the original ERISA-qualified Profit Sharing Plan agreement. Section 6.5(b) allows Debtor to elect between receiving monthly or other periodic payments or a lump sum payment on retirement. Section 8.2 states that upon termination of the Plan by the employer, complete distribution of the assets shall be made in a manner consistent with Section 6.5.
The Iowa statute is distinguishable from the Federal statute on its language. Furthermore, the cases which refuse to exempt lump sum distributions under the Federal statute generally are based on distributions made pre-retirement rather than post-retirement. This is not a case where a debtor is attempting to protect the undistributed corpus of a pension plan in order to receive future payments for which the debtor is not yet eligible. See Huebner, 986 F.2d at 1224.
Case law mandates that sec. 627.6(8)(e) be construed liberally to protect Debtor's rights in pension payments as wage substitutes necessary now after retirement when his earning capacity is limited. The language of the statute contains no restrictions against lump sum distributions after retirement. It is not uncommon that qualified pension plans would contain a right to elect a lump sum distribution. See Whetzal v. Alderson, 32 F.3d 1302, 1304 (8th Cir.1994) (holding that option to withdraw lump sum in Civil Service Retirement plan with enforceable restrictions on transfer did not disqualify fund from being excluded from property of estate under § 541(c)(2)).
This Court concludes that the lump sum distribution from the Profit Sharing Plan constitutes a "payment on account of age" within sec. 627.6(8)(e). The statute does not specifically exclude lump sum payment on *147 retirement from its coverage. This construction of the statute promotes the purpose of the statute to protect pension payments as necessary wage substitutes after retirement.
Having determined that the lump sum payment from the Plan in 1990 was exempt, the Court must now consider the duration and time period for which the proceeds of that exempt property continues to retain exempt status. The Bankruptcy Court for the Northern District of Iowa has considered whether the proceeds of a debtor's exempt tax refund check continue to be exempt after deposit in the debtor's bank account. In re Thompson, No. 93-51364XS, slip op. at 2, 1993 WL 767973 (Bankr.N.D.Iowa Dec. 9, 1993). The court stated that the purpose of the exemption would be defeated unless the tax refund could be converted to cash. Id. at 4. The court held that tax refunds traceable to bank accounts retain their exempt character. Id. This analysis is based upon the application of existing Iowa law. The Iowa Supreme Court holds that exempt wages retain their exempt character after deposit in a bank account. MidAmerica Savs. Bank v. Miehe, 438 N.W.2d 837, 839 (Iowa 1989). The Iowa court reasoned that the protection afforded by the exemption would be rendered meaningless if exempt status is lost by negotiating the paycheck. Id. Likewise, proceeds from the sale of an exempt homestead retain exempt status for a reasonable period of time. In re Ersepke, No. L-92-00541D, slip op. at 4, 1993 WL 767975 (Bankr.N.D.Iowa Nov. 30, 1993); Iowa Code § 561.20.
Whether exempt pension plan funds retained their exempt status after rollover to an IRA was a critical issue in In re Woods, 59 B.R. 221, 225 (Bankr.W.D.Wis.1986). The court considered whether statutory intent would be thwarted if the exemption did not continue in proceeds of exempt property. Id. The Court concluded that a debtor cannot in practicality keep a lump sum in cash and, therefore, held that traceable exempt funds remain exempt in the IRA. Id.
This Court concludes that Debtor's exempt lump sum payment from the Profit Sharing Plan retained its exempt status after rollover into the three Annuities. This holding promotes the purpose of the statute which is to protect pension plan payments after retirement. In this case, termination of the Plan forced Debtor to receive and reinvest his lump sum pension payment after retirement. All the proceeds of the distribution were transferred directly to the vendor of the Annuities and the proceeds, therefore, are directly traceable to the three Annuities. Debtor continues to receive periodic payments from these Annuities on account of his age and retirement. This Court must conclude that the payments made under the Annuities are exempt under sec. 627.6(8)(e).
At the time of filing his bankruptcy petition, Debtor had chosen to receive periodic payments from each of the Annuities. Thus, under the annuity contracts, Debtor no longer had the right to control or receive any undistributed corpus. Debtor receives monthly or quarterly payments from the Annuities. He purchased the Annuities from the funds he received from the lump sum distribution from the Profit Sharing Plan. He received the lump sum distribution after retirement when he was receiving monthly payments from the Plan on account of his age. The payments debtor receives from the Annuities are exempt as proceeds of the exempt lump sum distribution from the Plan.
WHEREFORE, Terra International's Objections to Statement of Intention, Statement of Affairs, Summary of Schedules and Schedules A-J is OVERRULED.
FURTHER, the Trustee's Objections to Property Claimed Exempt by Debtor is OVERRULED.
FURTHER, Debtor is entitled to claim an exemption under sec. 627.6(8)(e) for payments received under the three Annuities listed on Joint Exhibit A.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2026340/ | 73 B.R. 31 (1987)
In re Robert Calvin PAYTON, Jacqueline Marie Payton, Debtors.
No. 1-86-00620.
United States Bankruptcy Court, W.D. Texas, Austin Division.
March 13, 1987.
*32 Patrick C. Hargadon, Austin, Tex., for debtor.
Evelyn N. Howard-Hand, Kammerman, Overstreet & Hurren, Austin, Tex., for trustee.
MEMORANDUM DECISION AND ORDER
LARRY E. KELLY, Bankruptcy Judge.
On the 7th day of January 1987 came on to be considered the Trustee's Objection to the Amended Exemptions filed by the Debtors in the above styled and numbered case; and
It appearing to the Court that this case was filed on July 8, 1986 and the First Meeting of Creditors was set for and held on October 6, 1986. No extension of time to object to exemptions was ever requested by any party.
The last date for filing an objection to exemptions was 30 days after the conclusion of the First Meeting of Creditors, which in this case would be November 5, 1986.
On October 14, 1986, the Debtors amended their claim of exemptions by "deleting" one item. A boat, made the subject of the Trustee's objection in this case, was claimed on the original list of exemptions and this claim was not in any way altered by the amendment of October 14, 1986.
The Trustee's objection to amended exemptions was filed on November 12, 1986 which, was within 30 days of the October 14 amendment, but not within 30 days of the conclusion of the First Meeting of Creditors.
ISSUE
The issue presented to the Court is whether any amendment to exemptions reopens the 30-day objection period found in Bankruptcy Rule 4003(b), even as to property that was not the subject of the amendment.
DISCUSSION
The Court finds that Bankruptcy Rule 4003(b) provides in pertinent part as follows:
"Objections to claims of exemptions. The Trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the Meeting of Creditors held *33 pursuant to Rule 2003(a) or the filing of any amendments to the list unless, within such period, further time is granted by the Court . . ." (emphasis added).
This Court would first note that it does not believe that a boat, such as the one described in the B-4 Schedules and claimed exempt by the Debtor in this case, is subject to exemption under Texas Property Code Section 42.002(3)(E) as sporting goods. See e.g., In re Cypert, 68 B.R. 449 (Bankr.N.D.Tex.1987). However, if no objection was timely filed, then the exemption would be allowable.
Therefore, the key issue is whether "any" amendment reopens the time period for asserting an objection within 30 days after the date of such amendment, even if such amendment does not in any way alter the original claim. This Court does not believe that is the case. See Matter of Gullickson, 39 B.R. 922, 923 (Bankr.W.D. Wisc.1984) (The rules must be construed reasonably. It seems clear that the Bankruptcy Rule intended to allow for objections to those amendments which are actually made, and not to reopen previously determined issues.) This Court feels that although no objection was made and no ruling entered by the Court, it is clear that the objection time period is definite, the schedules were available and there is no issue presented to the Court for estoppel or any other equitable reason to extend the 30-day period provided for by the Rules, and no application was made on a timely basis to extend the 30 days allowed by the Rules for filing of objections. It appears clear to this Court that the 30-day period ran, the claimed exemption was at issue when the claim was made, and no timely objection being interposed the Trustee's objection is hereby denied.
It is, therefore, ORDERED that the Trustee's Objection to Amended Exemptions of Debtors' claimed exemption of a boat is OVERRULED and the exemption allowed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2051463/ | 101 Ill.2d 246 (1984)
461 N.E.2d 959
HOUSING AUTHORITY FOR LA SALLE COUNTY, Appellant,
v.
YOUNG MEN'S CHRISTIAN ASSOCIATION OF OTTAWA et al., Appellees.
No. 57989.
Supreme Court of Illinois.
Opinion filed March 23, 1984.
*247 *248 George Mueller, of Hoffman, Mueller & Creedon, of Ottawa, for appellant.
Paul V. Martin, of Lanuti, Martin & Lanuti, of Ottawa, for appellee.
Judgment affirmed.
JUSTICE SIMON delivered the opinion of the court:
The plaintiff, the Housing Authority for La Salle County, seeks an injunction against the defendant, the Young Men's Christian Association of Ottawa, prohibiting the construction of a parking lot, a portion of which would encroach on property that the housing authority claims it owns. The housing authority asked the court to *249 quiet title to the disputed parcel of real estate.
The issue here is whether this action is barred by a 1932 default judgment entered against Charles and Ella Deenis (jointly referred to herein as "Deenis"), the housing authority's predecessors in title, in United States v. Wirtz (N.D. Ill. Nov. 21, 1932), No. 40531, a condemnation action brought by the Federal government to acquire flood-plain easements over the disputed property as well as adjoining properties. The First Trust Company of Ottawa, the YMCA's predecessor in title, was joined as a codefendant in the Wirtz case. After the default by Deenis, the United States District Court for the Northern District of Illinois entered a judgment adjudicating First Trust to be the owner of the property which is the subject matter of this case and awarding First Trust compensation for the condemnation.
The circuit court of La Salle County granted summary judgment for the YMCA, holding that the judgment in Wirtz acts as a collateral estoppel with respect to the ownership of the disputed property. The appellate court affirmed (112 Ill. App.3d 65) with one justice dissenting, and we allowed the housing authority's petition for leave to appeal (87 Ill.2d R. 315). Affirming the judgments below, we hold that the judgment in Wirtz conclusively established that the YMCA's predecessor owned the disputed property as of the date of that judgment.
To determine the effect of the Wirtz judgment on the present litigation it is necessary to review the pleadings and judgment in that proceeding. The petition of the United States alleged that a plan for constructing a system of locks and dams on the Illinois River required the Federal government to acquire, by condemnation, easements and rights-of-way over numerous properties along the Fox River. The waterway project on the Illinois River would, it appeared, alter the course and elevation *250 of the Fox River and might result in flooding the properties which were the subject matter of the condemnation. The petition alleged that the Attorney General of the United States "has been unable to satisfactorily approve the title of the real estate [to be condemned], the same being in a confused state, and that there are many outstanding and adverse claims against the said described real estate." The petition sought a determination of who owned the lands to be flooded by the waterway project and how much they should be paid for the flood-plain easement.
The petition then named 70 individuals and corporations as defendants and briefly set out their claims to various parcels that were being condemned. The claims of First Trust (YMCA's predecessor) and Deenis (the housing authority's predecessor) were set out in a portion of the petition describing unresolved claims to a parcel along the Fox River in Ottawa and referred to as tracts 0-20 to 0-25 in the petition. The land in dispute in this case was a portion of those tracts. In particular the petition alleged:
"That The First Trust Company of Ottawa, Illinois claims the legal title to a part of real estate designated as Tract No. 0-20 to 0-25, under a Warranty Deed from May E. McDougall, a spinster, and Emma K. McDougall, dated December 17, 1926 and recorded December 20, 1926 in Book 626, Page 524, as Document No. 217744 in the Office of the Recorder of LaSalle County, Illinois;
That Ella E. Deenis, wife of Charles G. Deenis, claims the legal title to a part of the real estate designated as Tract No. 0-20 to 0-25, under a Warranty Deed from Charles G. Deenis dated December 24, 1918 and recorded March 13, 1919 in Book 568, Page 37, as Document No. 150901, recorded in the office aforesaid;
That said part of the real estate claimed by Ella A. Deenis is subject to the inchoate dower or statutory interest of Charles G. Deenis, as fixed by the provisions of *251 Paragraph 1, Chapter 41, of Callaghan's Illinois Statutes Annotated, 1924 Edition;
That the property claimed by The First Trust Company of Ottawa, Illinois and Ella A. Deenis is encumbered by a lien for the general taxes for the year 1931."
When Deenis failed to appear, after being served with summons, the United States district court entered a default judgment against them stating that the "petition * * * is hereby taken as confessed against the defendants * * * insofar as they have any claim or interest in the property * * * designated as `Tracts Nos. 0-20 to 0-25' [in the petition]." On the same day that the default judgment was entered, a judgment was also entered finding that First Trust was seized with the fee simple title to real estate, followed by a legal description which the district court referred to as being a part of the real estate designated as "tracts nos. 0-20 to 0-25." The record contains the affidavit of a registered land surveyor stating that all of the land in the instant dispute is covered by the legal description contained in the judgment in the Wirtz case. The judgment awarded First Trust $650 as compensation for condemnation of the flood-plain easement over the land covered by the legal description set forth.
A prior judgment may have preclusive effects in a subsequent action under both res judicata and collateral estoppel. The doctrine of res judicata provides that "a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action." (Emphasis added.) (People v. Kidd (1947), 398 Ill. 405, 408.) When res judicata is established "as a bar against the prosecution of a second action between the same parties upon the same claim or demand * * * it is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, but as to *252 any other matter which might have been offered for that purpose. [Citations.]" Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 478.
The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction. (See Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill.2d 1, 7.) The adjudication of the fact or question "in the first cause will, if properly presented, be conclusive of the same question in the later suit" (Hoffman v. Hoffman (1928), 330 Ill. 413, 417), but "the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined." (Emphasis added.) Charles E. Harding Co. v. Harding (1933), 352 Ill. 417, 427; see also Grip-Pak, Inc. v. Illinois Tool Works, Inc. (7th Cir.1982), 694 F.2d 466, 469, cert. denied (1983), 461 U.S. 958, 77 L.Ed.2d 1317, 103 S.Ct. 2430.
Both parties have presented the issue in this case as one of collateral estoppel. They characterize the claim in the 1932 Wirtz action as one to condemn an easement, while the claim in the present action is one to quiet title. We do not agree with the parties' characterization of the claim involved in the Wirtz litigation, and we believe that the appropriate preclusion doctrine to apply in this case, notwithstanding the positions the parties have taken, is res judicata rather than collateral estoppel.
In condemnation actions brought by the Federal government, United States district courts have jurisdiction to settle conflicting claims to the title of land which is affected by or the subject of the condemnation. (See, e.g., United States v. 88.28 Acres of Land (7th Cir.1979), 608 F.2d 708, *253 714; United States v. 22,680 Acres of Land (5th Cir.1971), 438 F.2d 75, 77; United States v. Atomic Fuel Coal Co. (4th Cir.1967), 383 F.2d 1, 3.) "Indeed, it is the duty of the district court in distributing the condemnation fund to ascertain who is entitled to participate therein. There can be no just compensation, as the Constitution requires, if the fund is dispersed to the wrong persons." (Bullen v. De Bretteville (9th Cir.1956), 239 F.2d 824, 830, cert. denied (1957), 353 U.S. 947, 1 L.Ed.2d 856, 77 S.Ct. 825.) Thus, the court's power in a condemnation proceeding to fix compensation and apportion it among the claimants "necessarily includes the power to determine who among competing claimants owns the condemned land." United States v. 1,629.6 Acres of Land (3d Cir.1974), 503 F.2d 764, 766.
When unable to confirm title to a parcel that it seeks to condemn, the Federal government has an interest in resolving the conflicting claims on the parcel in the condemnation action. Only in this way can the government be sufficiently assured that it will not be subjected to future claims for compensation by holders of valid title. Thus, in most condemnation proceedings the government joins as defendants all competing claimants to the condemned property so that they may be required to litigate their conflicting claims to the property.
In the contest between competing claimants, however, the government is a nominal party without any substantial interest in who establishes that he has title to the property. The competing claimants in a condemnation action actually are engaged in a quasi-interpleader action where the government summons the parties into the United States district court and compels them to litigate their claims to title in the property. Cf. United States v. 350.925 Acres of Land (5th Cir.1979), 588 F.2d 430, 431 ("[a]n eminent domain proceeding to determine who has title to the property is properly treated as a proceeding in the nature of interpleader").
*254 A decree operates as res judicata of the claim presented in a later action when the facts and relief sought in both actions "are substantially the same." (Midlinsky v. Rubin (1930), 341 Ill. 378, 385.) Because the "claim" involved in Wirtz was of the nature described above, it was actually the very same quiet title claim that the housing authority purports to litigate in the present case. Both cases involved the claim of title to the disputed property, and the object of each case was to ascertain the true owner of the property.
The condemnation action in Wirtz required the Federal government to call both Deenis and First Trust into the United States district court to litigate their respective claims to the fee interest in the land. Both Deenis and First Trust received proper service of the complaint. When Deenis defaulted and the court entered a judgment finding First Trust to be the fee owner of the property, the title dispute was resolved and the doctrine of res judicata applied to bar any relitigation of that claim.
Although the judgment against Deenis was by default, it is entitled to the same preclusive effect under the doctrine of res judicata as any other judgment. Some courts have held that default judgments have limited preclusive effects under the doctrine of collateral estoppel. (See Grip-Pak, Inc. v. Illinois Tool Works, Inc. (7th Cir.1982), 694 F.2d 466, 469, cert. denied (1983), 461 U.S. 958, 77 L.Ed.2d 1317, 103 S.Ct. 2430 ("a default judgment is not a proper basis for collateral estoppel"); In re McMillan (3d Cir.1978), 579 F.2d 289, 292-93; Restatement (Second) of Judgments sec. 27, comment e (1982); see also Collateral Estoppel in Default Judgments: The Case For Abolition, 70 Columb. L. Rev. 522 (1970); 1B J. Moore, Moore's Federal Practice sec. 0.444[2], at 798 (2d ed. 1983).) However, default judgments are always res judicata on the ultimate claim or demand presented in the complaint.
*255 The housing authority asks us to recognize unique circumstances in this case that it claims would support relaxing the ordinary application of a preclusion doctrine. Adams v. Pearson (1952), 411 Ill. 431, is the principal case they have cited for this proposition, but even there this court recognized that the "peculiar facts" in that case under "which both parties would be barred by ordinary application of the rules of res judicata with an unsatisfactory and perhaps inequitable result, present a unique and nonrecurrent situation." 411 Ill. 431, 442.) The equities here are not as compelling as those this court relied on in Adams v. Pearson.
The housing authority argues that Deenis lacked sufficient incentive to litigate the issue of title in the condemnation proceeding and, therefore, it is inequitable to accord the judgment in that proceeding preclusive effect as having determined the ownership of the disputed parcel. This argument is unpersuasive. Under special circumstances, the absence of an incentive to litigate might be relevant in the application of collateral estoppel (Restatement (Second) of Judgments sec. 28(5)(c) (1982)), but no authority suggests that it is relevant when the doctrine to be applied is res judicata.
In any event, Deenis had sufficient incentive to litigate the claim of title in the condemnation proceeding. By receipt of the petition in Wirtz they were on notice that one of the purposes of that action was to determine who had title to the condemned property; the petition described the condition of that title as "being in a confused state [with] many outstanding and adverse claims * * *." The petition also set forth the adverse claim of First Trust just before the claim of Deenis and stated "[t]hat the property claimed by the First Trust Company of Ottawa, Illinois and Ella A. Deenis is encumbered by a lien for the general taxes for the year 1931." (Emphasis added.) The juxtaposition of the claims and the language concerning the tax lien were sufficient *256 to indicate to Deenis that their property was subject to an adverse claim that would be litigated in the condemnation proceeding. The facts related in the petition created enough incentive and warning for anyone who believed he had a fee interest and desired to retain it to appear in the litigation and establish his ownership rather than abdicating any claim of ownership by failing to appear and enter the contest.
If anything, the equities in this case support us in upholding the title recognized in Wirtz. The judgment in that case was recorded in the public record over half a century ago and has been available for inspection by all subsequent purchasers of the property. "Where questions arise which affect [ownership of] titles to land it is of great importance to the public that when they are once decided they should no longer be considered open." Minnesota Co. v. National Co. (1866), 70 U.S. (3 Wall.) 332, 334, 18 L.Ed. 42, 43; see also United States v. Title Insurance & Trust Co. (1924), 265 U.S. 472, 486, 68 L.Ed. 1110, 1114, 44 S.Ct. 621, 623.
For these reasons, we hold that the judgment in United States v. Wirtz is res judicata and bars any claim that the housing authority or its predecessors had to ownership of the disputed parcel prior to the date of that judgment.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2012493/ | 14 N.Y.3d 319 (2010)
927 N.E.2d 532
901 N.Y.S.2d 112
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JAMES J. CARNCROSS, Appellant.
No. 38
Court of Appeals of New York.
Argued February 11, 2010.
Decided March 25, 2010.
*321 Mitchell Goris & Stokes, LLC, Cazenovia (Stewart F. Hancock, Jr., of counsel), and Bianco Law Offices, Syracuse (Randi Juda Bianco of counsel), for appellant.
*322 William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell and Victoria M. White of counsel), for respondent.
Judges CIPARICK, GRAFFEO, READ and JONES concur with Chief Judge LIPPMAN; Judge PIGOTT dissents and votes to reverse in a separate opinion in which Judge SMITH concurs.
*323 OPINION OF THE COURT
Chief Judge LIPPMAN.
In protecting a defendant's Sixth Amendment rights, a trial court may on occasion properly disqualify the attorney of a defendant's choosing due to that attorney's conflicts, actual or potential, even in the face of defendant's waiver of such conflicts. This is such a case.
In the late afternoon on April 23, 2006, defendant drove away from his home in Onondaga County on his motorcycle. On felony probation at the time, defendant could not own or operate a motor vehicle since he did not have his probation officer's permission to do so, and he was not licensed to drive a motorcycle in New York State. As defendant traveled west on Route 173 *324 toward Jamesville, New York State Trooper Craig Todeschini observed defendant speeding and began to pursue him. Defendant admitted that when he turned left onto Route 91, he saw the trooper's vehicle behind him with its emergency lights on, but, rather than pulling over to the side of the road, "took off" in an attempt to "not get[] caught by the trooper."
Various witnesses observed the motorcycle, followed by the trooper's vehicle, traveling at a high rate of speed, estimated between 90 and 120 miles per hour, and weaving in and out of traffic along the two-lane country roads. As Trooper Todeschini entered the Hamlet of Pompey Hill, still in pursuit of defendant, he was unable to negotiate a turn in the road, lost control of his vehicle, and collided head-on into a tree, resulting in his immediate death. Three days after the accident, defendant voluntarily appeared at the New York State Police barracks for an interview and, after consulting with his attorney, gave an inculpatory statement.
Defendant was indicted on one count each of reckless driving, aggravated manslaughter in the second degree, and aggravated criminally negligent homicide. A jury acquitted him of the aggravated manslaughter count, but convicted him on the reckless driving and aggravated criminally negligent homicide counts. Defendant was sentenced as a predicate felon to seven years in prison with five years' postrelease supervision. The Appellate Division affirmed the judgment of conviction (59 AD3d 1112 [2009]). A Judge of this Court granted defendant's application for leave to appeal from that order (12 NY3d 852 [2009]). We now affirm.
I.
Defendant first argues that the evidence was legally insufficient to support his conviction for aggravated criminally negligent homicide. In particular, defendant claims that there was insufficient evidence to establish that he acted with the requisite mens rea. This claim, however, is unpreserved. After the People rested, and again at the close of all the proof, defendant moved to dismiss the aggravated criminally negligent homicide count, arguing only that the evidence was insufficient to prove a "causal connection" between the defendant's conduct and the trooper's death. The court denied both motions. At no point did defendant argue, as he does now, that the evidence failed to establish he acted with the requisite mens rea. As we have previously explained, "where a motion to dismiss for *325 insufficient evidence [is] made, the preservation requirement compels that the argument be `specifically directed' at the alleged error" (People v Gray, 86 NY2d 10, 19 [1995], quoting People v Cona, 49 NY2d 26, 33 n 2 [1979]). Given defendant's failure to argue with particularity that the evidence was legally insufficient to prove that he acted with the requisite mens rea, we are foreclosed from reviewing that claim here.
Defendant also argues that the evidence is legally insufficient to establish a causal connection between his conduct and the death of the trooper. Although plainly preserved, this argument is without merit.
In People v DaCosta, we explained the law regarding causation in this context:
"To be held criminally responsible for a homicide, a defendant's conduct must actually contribute to the victim's death by setting in motion the events that result in the killing. Liability will attach even if the defendant's conduct is not the sole cause of death if the actions were a sufficiently direct cause of the ensuing death. More than an obscure or merely probable connection between the conduct and result is required. Rather, an act qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen" (6 NY3d 181, 184 [2006] [internal quotation marks, brackets and citations omitted]).
In that case, we held that the evidence was legally sufficient with respect to causation where a police officer, while chasing the fleeing defendant across a busy expressway, was struck and killed by a vehicle. Similarly, in People v Matos (83 NY2d 509 [1994]), evidence of causation was legally sufficient where a police officer fell down an air shaft to his death in the course of pursuing the fleeing defendant up a ladder and across a roof. These cases establish that where a defendant's flight naturally induces a police officer to engage in pursuit, and the officer is killed in the course of that pursuit, the causation element of the crime will be satisfied.
Defendant argues that the trooper was negligent by excessively speeding and losing control of his vehicle and violated State Police pursuit policy and Vehicle and Traffic Law § 1104, and that these acts were intervening and unforeseeable causative circumstances. However, it is plain that had defendant not fled, the trooper would not have engaged in the *326 high-speed chase that resulted in his death. Additionally, contrary to defendant's contention, there is no requirement that a defendant's vehicle actually make contact with the trooper's vehicle in order for the causation element to be satisfied. Rather, the essential inquiry is whether defendant's conduct was a sufficiently direct cause of the trooper's death, a question we answer in the affirmative. There can be no doubt that defendant's conduct set in motion the events that led to the trooper's death, and it was reasonably foreseeable that a fatal accident would occur as a result of defendant leading the trooper on a high-speed pursuit. Accordingly, the evidence was legally sufficient to establish a causal connection between defendant's conduct and the trooper's death.
II.
Defendant next argues that County Court erred in granting the People's motion to disqualify his counsel. When the case was presented to the grand jury, the prosecutor called defendant's father and girlfriend. One of defendant's retained attorneys, Mary Gasparini, represented these witnesses and appeared with them in the grand jury room while they gave their testimony. Defendant's father testified that, on the evening of the accident, defendant returned home after riding his motorcycle and told his father not to let him ride his motorcycle until he was properly licensed because he was nearly pulled over by the police. Defendant also told his father that he had seen flashing lights, yet kept driving. Defendant's girlfriend testified that he called her shortly after the accident and said he was the motorcyclist the police were looking for and that he thought he was going to jail because the trooper had died. The next day, he called her and told her not to say anything about what he had told her the night before.
After the case had been presented to the grand jury, and four months before trial, the People moved to disqualify Gasparini and her partner, James Meggesto, on the ground that a potential conflict of interest existed based on Gasparini's representation at the grand jury of defendant's father and girlfriend who would be prosecution witnesses at trial. Defendant argued that if there was any conflict at all, it was only potential, and the issue could not be determined until after the testimony of the witnesses. Further, the defense argued that any potential conflict was waivable by defendant. Indeed, in open court, defendant indicated he was willing to waive any conflict.
*327 At a subsequent court appearance, the court appointed an independent attorney to advise the defendant with respect to the conflict of interest and its implications. After a discussion with defendant, the independent counsel informed the court that defendant understood the conflict and was willing to waive it, after which defendant waived the conflict on the record. Nevertheless, the court granted the People's motion, concluding that defense counsel "must be disqualified in order to protect the defendant's rights to effective assistance of trial counsel and a fair trial free of any conflict of interest."
Although both defendant's father and girlfriend were mentioned at jury selection as potential witnesses, in the end neither actually testified. On appeal, the Appellate Division concluded that County Court did not abuse its discretion in granting the People's motion to disqualify defense counsel. We agree.
When examining a defense counsel's possible conflict of interest, a court must balance the defendant's constitutional right to the effective assistance of counsel against the defendant's right to be defended by counsel of his own choosing (see People v Gomberg, 38 NY2d 307, 312 [1975]). "A lawyer simultaneously representing two clients whose interests actually conflict cannot give either client undivided loyalty" (People v Ortiz, 76 NY2d 652, 656 [1990]), and, in such a case, the constitutional right to effective assistance of counsel may be "substantially impaired" (Gomberg, 38 NY2d at 312). Where there is a question as to a possible conflict, although the court "should not arbitrarily interfere with the attorney-client relationship," the court "has a duty to protect the right of an accused to effective assistance of counsel" (id. at 313). Thus, when the court is informed of a potential conflict, it must "ascertain, on the record, whether each defendant has an awareness of the potential risks involved in that course and has knowingly chosen it" (id. at 313-314).
In Gomberg, we explained that it is often difficult to assess these conflicts prospectively, before the court is fully aware of "the evidence to be adduced, the strategies to be followed and all defenses that may be plausibly asserted" (id. at 314). Thus, a defendant's willingness to waive the conflict at an early stage does not end the inquiry. As the Supreme Court has explained, even though there is a "presumption in favor of [the defendant's] counsel of choice," that right is not absolute and the court may decline to honor the defendant's waiver of a conflict:
"Unfortunately for all concerned, a [lower] court *328 must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict ...
"For these reasons we think the [lower] court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses" (Wheat v United States, 486 U.S. 153, 164, 162-163 [1988]).
Here, the trial court had the independent obligation to ensure that defendant's right to effective representation was not impaired. Although defendant's father and girlfriend never testified at trial, at the point in the proceedings when the disqualification motion was made, the parties were operating under the assumption that these witnesses might well be called. Specifically, the defense had indicated that it was possible they would proceed with the theory that defendant was not the person who had been driving the motorcycle. The trial court reasonably concluded that, if the defense chose this strategy at trial, it was highly likely that the prosecution would call defendant's father and girlfriend, who both possessed damaging evidence indicating that defendant had, indeed, been driving the motorcycle. Further, the court properly found that, if these witnesses were called, defense counsel would have been required to cross-examine them. An "attorney's decision whether and how best to impeach the credibility of a witness to whom he ... owe[s] a duty of loyalty necessarily place[s] the attorney in a very awkward position, where prejudice to defendant need not be precisely delineated but must be presumed" (People v McDonald, 68 NY2d 1, 11 [1986] [internal quotation marks, citation and brackets omitted]). Moreover, had counsel not been disqualified under these circumstances, counsel's ability to objectively assess the best strategy for defendant to pursue may have been impaired. Defense counsel, obligated to maintain the confidences of the father and the girlfriend, might choose the *329 strategy least likely to cause the prosecution to call them as witnesses, thereby avoiding the need to cross-examine them. It would be difficult to repose confidence in counsel's single-minded protection of defendant's interests in these circumstances.
Our dissenting colleagues embrace a seemingly unworkable test in characterizing the conflict here as "more theoretical than real" and "not serious, given the common interest shared by defendant, his girlfriend and his father" (dissenting op at 332). Defendant's father and girlfriend may well have shared with defendant the desire to see him exonerated and avoid having the prosecutor call them to testify; indeed, that may be why they retained the same lawyers in the first instance. Their identity of interest with defendant would dissolve, however, upon either being called as a witness for the prosecution or, as noted, could have dissolved even earlier if defense counsel opted for a strategy tailored to avoid having to cross-examine them (see People v Wandell, 75 NY2d 951 [1990] [excoriating defense counsel and the prosecutor for failing to advise the trial court of defense counsel's representation of a prosecution witness in a separate civil action]; see e.g. People v Stewart, 126 AD2d 943 [4th Dept 1987] [concluding that a conflict was presented by counsel's representation of both a father and a son, and ordering a new trial on ineffective assistance of counsel grounds where, as here, the son made incriminating statements to his father who then provided information against his son to authorities]). More fundamentally, the trial court was tasked with considering this potential conflict without the benefit of hindsight, and the approach taken by the dissent would too narrowly limit the "substantial latitude" (Wheat, 486 US at 163) we all agree the trial court possessed in exercising its discretion under these circumstances.
A review of the record here reveals that the court carefully balanced defendant's right to counsel of his own choosing against his right to effective assistance of counsel. The court was quite properly reluctant to disqualify counsel, but acted well within the bounds of its discretion in concluding that allowing counsel to continue would "severely undermine [defendant's] ability to present a cogent defense." Further, there is no indication that the prosecution's disqualification request was manufactured in order to gain a tactical advantage (see Wheat, 486 US at 163). We also note that, contrary to defendant's argument, the court was under no obligation to wait until trial to *330 see if defendant's father and girlfriend would testify. If the court were required to delay resolution of the motion, and these witnesses were called to testifywhich was a possibility even when the trial begana mistrial would likely have been necessary at that late juncture.
Indeed, the circumstances of this case highlight that trial courts faced with a defendant willing to waive a conflict are often placed in the very difficult position of having their decision challenged regardless of the outcome. As the Supreme Court in Wheat explained, if the court honors the waiver, the defendant can later claim he was denied the effective assistance of counsel (see id. at 161). On the other hand, if the trial court refuses to honor the waiver, a defendant may well raise a challenge like the one presented here (see id.). Of course, the rights that must be balancedthe right to counsel of a criminal defendant's choosing and the right to effective assistance of counsel free of conflictsboth inure to a defendant's benefit. At times, however, as here, circumstances are such that the attorney a defendant chooses is also conflicted, in which case these rights may not be enforced in perfect harmony. Thus, as we have observed, a trial court's "discretion is especially broad when the defendant's actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review" (People v Tineo, 64 NY2d 531, 536 [1985]; see generally People v Konstantinides, 14 NY3d 1 [2009]). We trust that the trial courts, relying on their experience and sound judgment, will carefully evaluate the circumstances presented in such cases and strike an appropriate balance of the relevant interests. Under the circumstances presented here, the court did not abuse its broad discretion in granting the motion to disqualify defendant's counsel.
III.
Defendant further argues that his statement to the police should be suppressed because his counsel was ineffective in advising him to give the statement. The record reveals that, when defendant voluntarily arrived at the trooper barracks three days after the accident, he was given Miranda warnings. Defendant spoke with troopers for a period of time, but then invoked his right to counsel, at which point the questioning immediately ceased. Defendant's then attorney, David Savlov, faxed a letter to the barracks indicating he represented defendant, *331 and appeared at the barracks shortly thereafter. After speaking with defendant, Savlov informed the troopers that defendant was willing to speak with them. The troopers again administered Miranda warnings to defendant, who subsequently gave a statement implicating himself in the motorcycle chase.
County Court denied defendant's motion to suppress the statement, and the Appellate Division affirmed, holding that "suppression was not required inasmuch as defendant received meaningful representation" (59 AD3d at 1114 [citation omitted]).
Even assuming, without deciding, the right to effective assistance of counsel attached prior to defendant's inculpatory statement and that suppression is the appropriate remedy where a statement is given as the result of ineffective assistance of counsel (see People v Claudio, 83 NY2d 76 [1993]), defendant here has failed to establish that he received ineffective assistance. In determining whether a defendant has been deprived of effective assistance of counsel, we must examine whether "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]). "[A]ll of the evidence must be weighed in context and as of the time of representation to assess the alleged deficient representation" (People v Hobot, 84 NY2d 1021, 1022 [1995]). Although rare, a single, substantial error by counsel may "so seriously compromise[] a defendant's right to a fair trial [that] it will qualify as ineffective representation" (id.). Only where the single error is sufficiently "egregious and prejudicial" will counsel be deemed ineffective (People v Caban, 5 NY3d 143, 152 [2005]).
The record reveals that, after arriving at the police barracks, Savlov was told by representatives of the District Attorney's Office that the District Attorney would look favorably upon defendant if he voluntarily gave a statement. Further, Savlov "was also told that the police had received information that the defendant was in fact the person being sought [and] ... the names of other persons who had spoken to the defendant." Thus, this case is distinguishable from Claudio (83 NY2d at 78), in which we noted that defendant's counsel was grossly incompetent for advising defendant to give a statement despite that the police had indicated they had insufficient evidence against defendant and the prosecutor had informed the attorney that no plea bargain would be offered. Here, Savlov made the *332 strategic decision to encourage defendant to cooperate in order to receive favorable treatment once charges were brought. Under all the relevant circumstances, we cannot say that defendant received less than meaningful representation.
IV.
We have considered defendant's other challenges to his conviction and find them to be without merit.
Accordingly, the order of the Appellate Division should be affirmed.
PIGOTT, J. (dissenting).
Because, in my view, County Court committed reversible error in disqualifying defendant's counsel, I respectfully dissent. The court disqualified counsel based upon its finding that a potential conflict of interestwhich was more theoretical than realwould, in its opinion, infringe upon defendant's right to the effective assistance of trial counsel.
It is hornbook law that, the right to counsel being a fundamental one, courts must "carefully scrutinize[]" the "judicial restriction or governmental intrusion" upon its exercise (People v Tineo, 64 NY2d 531, 536 [1985]). While a trial court should be accorded "substantial latitude" in refusing a defendant's waiver of even a potential conflict (Wheat v United States, 486 U.S. 153, 163 [1988]), it is evident from this record that any potential conflict (which never came to fruition) was simply not serious, given the common interest shared by defendant, his girlfriend and his father.
When the court questioned defendant about his waiver, he remained steadfast that he wished to waive any potential conflict. The court then appointed an experienced criminal lawyer as independent counsel to meet with defendant to explain the ramifications of this choice. She met with defendant twice and sent him a letter explaining his rights, including the risks and benefits of waiving the conflict. That attorney reported to the court that it was her view that defendant understood the risks of waiving the conflict and still wished to do so. Notwithstanding these facts, County Court disqualified counsel. What is remarkable here is that no one seems to have had an objection to defendant retaining his counsel other than his adversary and the court.
An element of a defendant's federal and state constitutional right to counsel (US Const 6th Amend; NY Const, art I, § 6) "is the right of [the] defendant who does not require appointed counsel to choose who will represent him" (United States v *333 Gonzalez-Lopez, 548 U.S. 140, 144 [2006]; see People v Arroyave, 49 NY2d 264, 270 [1980]). When a defendant is wrongly deprived of that right, the deprivation is "complete" at the time the defendant is erroneously prohibited from being represented by the counsel of his choice, and such error is considered a "structural" one not subject to harmless error analysis (Gonzalez-Lopez, at 148, 150).
In support of its holding here, the majority relies on People v Ortiz (76 NY2d 652 [1990]) and People v Gomberg (38 NY2d 307 [1975]), both of which are "multiple representation" cases. The former case involved a garden-variety drug trial where defense counsel's loyalties were divided between the defendant he was representing and a testifying witness whose interests diverged from those of the defendant; the latter case involved a situation where the same attorney represented three defendants who were on trial for arson, and the defense asserted by one of the defendants allegedly shifted the blame to the other defendants. Of course, as the United States Supreme Court has recognized, "multiple representation of criminal defendants engenders special dangers of which a court must be aware" (Wheat, 486 US at 159). But that is not the situation we are presented with here, where neither defendant's father nor his girlfriend was facing a criminal charge, nor were they targets of the investigation.
The Supreme Court has recognized "a presumption in favor of [a defendant's] counsel of choice" which may be overcome by either a showing of actual conflict or "a serious potential for conflict" (Wheat, 486 US at 164). It is undisputed in this instance that, at most, there was a potential conflict because defendant's interests might have placed defense counsel under inconsistent duties in the future had defendant's father and girlfriend been called as witnesses at trial (United States v Perez, 325 F3d 115, 125 [2d Cir 2003], citing United States v Kliti, 156 F3d 150, 153 n 3 [2d Cir 1998]). But such a conflict, waivable so long as the court is satisfied that it is knowing and intelligent (Perez, 325 F3d at 125), could hardly be considered serious, and clearly not enough to overcome the presumption in favor of affording defendant his constitutional right to counsel of his own choosing.
The majority and the People latch onto the premise that, at the time of the disqualification motion, it was the defense's theory of the case that defendant was not the operator of the motorcycle, and that the "damaging" testimony by defendant's father and girlfriend before the grand jury all but ensured that *334 they would be called as witnesses. However, the defense advised the court that, without discovery, it had yet to determine its trial strategy. Moreover, a simple reading of the grand jury testimony of defendant's father and girlfriend, who were not called to testify before the second grand jury,[*] indicates that their testimony was not substantially different from the statement defendant made to the police just three days after the crash. If anything, the testimony of defendant's father and girlfriend was no more damaging than defendant's own statement to the police which, upon a fair reading, rendered it unlikely that defendant would be pursuing a "mistaken identity" defense as the court surmised in its decision and order disqualifying defense counsel.
In matters where there is an apparent conflict, the trial courts have a duty to protect a defendant's right to the effective assistance of counsel without concomitantly "arbitrarily interfer[ing] with the attorney-client relationship" (Gomberg, 38 NY2d at 313). Where, as here, the potential conflict is theoretical at best because the witnesses are united with the defendant and the defendant has been adequately apprised of the risks of waiving any potential conflict and agrees to do so, the defendant should not be deprived of his fundamental right to counsel of his own choosing. Absent any institutional concerns, such as where the attorney's representation would jeopardize the integrity of the judicial proceedings, courts should not "assume too paternalistic an attitude in protecting the defendant from himself" (Perez, 325 F3d at 126, quoting United States v Curcio, 694 F2d 14, 25 [2d Cir 1982]).
There being no indication that allowing disqualified counsel to represent defendant in these circumstances would jeopardize the integrity of the proceedings, I would reverse the order of the Appellate Division and grant defendant a new trial with counsel of his choosing.
Order affirmed.
NOTES
[*] The second grand jury proceeding occurred in September 2006 after disqualification of defense counsel, the indictment from the first grand jury proceeding having been dismissed due to the alleged conflict. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2054616/ | 2 Ill.2d 374 (1954)
118 N.E.2d 14
FLORENCE HUGHES, Appellee,
v.
ILLINOIS PUBLIC AID COMMISSION, Appellant.
No. 33003.
Supreme Court of Illinois.
Opinion filed March 17, 1954.
*375 LATHAM CASTLE, Attorney General, and JOHN L. DAVIDSON, JR., both of Springfield, (WILLIAM C. WINES, RAYMOND S. SARNOW, and A. ZOLA GROVES, of counsel,) for appellant.
LUTHER D. SWANSTROM, of Chicago, for appellee.
Judgment reversed.
Mr. JUSTICE MAXWELL delivered the opinion of the court:
The Illinois Public Aid Commission, after a hearing as provided by statute, found that the appellee, Florence Hughes, a recipient of old age assistance, had abandoned her Illinois residence and ordered her assistance discontinued. On review the circuit court of Cook County found that appellee had not abandoned her Illinois residence, set aside the order of the commission and ordered appellee reinstated. The commission appeals from that order.
The sole question presented is whether the evidence introduced before the hearing officer of the commission shows that appellee has abandoned or retains her Illinois residence for the purpose of the Public Assistance Code. *376 The objective facts, as disclosed in that evidence, are not in dispute and may be fairly summarized as follows: Appellee qualified for assistance under the act as a resident of the city of Chicago in May, 1944, and received monthly assistance checks until she was declared ineligible by the commission in November, 1951. Appellee's husband died in June, 1947, and she thereafter resided in a rented room furnished with her belongings. She owned no real estate. In 1949 appellee advised the commission, through its representatives, that she wanted to move to California where her sister resided but she wanted assurance that she would remain eligible for her pension until she had resided in that State long enough to qualify for old age assistance there, a period of five years. Her consultations with the commission's representatives culminated in the commission procuring an opinion from the Attorney General and advising her, in December, 1949, that she might move to California with the intention of remaining in that State and that as long as need existed she would continue to receive assistance from Illinois. She was further advised, in this same communication, that a change in the regulations regarding out-of-State residence could be made at any time by legislative action and that the commission could not guarantee her that she would receive her pension for five years. Relying upon this assurance appellee moved to California in January, 1950. In June, 1950, the commission promulgated its resolution in Bulletin 50.18 declaring that 12 months absence from the State shall be prima facie evidence of intention to relinquish an Illinois residence for the purposes of the Public Assistance Code. Appellee was immediately notified by letter that her grant would be discontinued. Appellee then contacted her brother, a Mr. Raymond, who resided in Chicago, and he telephoned the Chicago office of the commission advising them that his sister did not intend to abandon her Illinois residence. On this information appellee's grant was resumed. In August, *377 1950, appellee was again advised of the commission's new out-of-State policy and was sent a questionnaire which she returned the following month. In an accompanying letter she stated she had not returned to Illinois because she was waiting to hear if her old age pension would continue until she was eligible for assistance in California. She stated in this letter that it was her understanding when she moved from Chicago that "I was going to reside in California permanently and would receive my pension from Illinois until I had been a resident of California for five years and eligible for pension here."
In December, 1950, the commission notified appellee, by letter, that if she did not return to Illinois in January, 1951, her assistance would be discontinued. Again at the request of appellee's brother, upon representation that she was ill and under a doctor's care, the date for her return was extended to June, 1951. In May of that year appellee returned another questionnaire and in an accompanying letter she stated, "Owing to illness my doctor advises me to remain in California as the climate and chiropathic treatment has been a great help. On account of my heart condition cannot live in cold climate. * * * Therefore, I would like to remain until such time as condition would permit a move." By letter dated June 21 appellee's physician advised the Chicago office of the commission that she had been receiving medical attention but that in his opinion she was able to travel. The commission had previously received two letters from a chiropractor advising that appellee was receiving treatments from him, that she would have to continue such treatments for a long time, and that it was not advisable for her to return to Chicago. On June 28 appellee's brother assured a representative of the commission that she would return to Chicago in September, 1951, and the requirement that she return was extended to that time. She failed to return in September, and on October 26 she was advised that the Illinois Public Aid *378 Commission had released her October warrant but she would no longer be eligible unless she resumed her residence in Illinois. On April 3, 1952, appellee's brother requested her reinstatement, formal application therefor was filed May 7, 1952, and was denied by the county department and affirmed by the commission in August, 1952. On August 29 this complaint for judicial review by the circuit court was filed.
The circuit court, in review of the decision of the commission, found that the question of residence was purely one of intention, that the evidence showed appellee intended to keep her residence in Illinois until she had qualified for relief in the State of California, and the order of the commission was reversed and appellee was ordered restored to the pension rolls.
Subsequent to the judgment of the circuit court, and while this appeal was being perfected, the legislature adopted an amendment to the Public Assistance Code, effective July 15, 1953, which provides:
"A recipient of assistance or general assistance who has remained outside the State for a continuous period of 12 months shall prima facie be presumed to have lost his residence and shall receive no further assistance or general assistance unless and until he submits evidence sufficient to prove that he has retained such residence." Ill. Rev. Stat. 1953, chap. 23, par. 436-10; Jones Ann. Stat. 18.201-10.
Where no vested rights are involved this court must decide the issues on the law as it stands at the time of our decision and not as of the time the cause of action accrued or the time of the trial court's decision. (Peoples Store of Roseland v. McKibbin, 379 Ill. 148.) We have held several times that there are no vested rights in a gratuitous pension granted by the State where such pension is not granted in contractual requital and as consideration for services rendered or some other valuable consideration. (Keegan v. Board of Trustees, 412 Ill. 430; *379 Dodge v. Board of Education, 364 Ill. 547, affirmed 302 U.S. 74; Stiles v. Board of Trustees, 281 Ill. 636.) Our decision must therefore consider and apply the 1953 amendment.
The appellee contends that the State is in some manner bound or estopped by the representations made to her by the administrative personnel of the Department or by the opinion of the Attorney General upon which she relied when she moved from Illinois. That contention cannot be considered regardless of how unfortunate it is if appellee was misled by those representations. The State cannot be bound by the representations of its employees if the law is to prevail over the opinions or judgment of such employees. (People ex rel. Barrett v. Crowe, 387 Ill. 53; Massell v. Daley, 404 Ill. 479.) Furthermore, the representations made to appellee, and the opinion of the Attorney General, were all contingent upon any change in the law by legislative action, a contingency which has occurred and which we must here take into account. Other than as a circumstance to be considered in determining appellee's intention when she moved from Illinois, those representations are immaterial.
The question for our determination here is not what is or was the appellee's intention in regard to her Illinois residence, that is abundantly clear and expressly stated by appellee; the real issue is what is the effect of appellee's intentions upon the retention or abandonment of her Illinois residence under the provisions of the act.
There is no room for doubt, under the evidence and appellee's statements, that she moved to California with the intention of residing there permanently and establishing a residence there which would ripen into a five-year residence in that State to qualify her for assistance there. It is equally clear that she wanted to cling to her status as a qualified resident of this State until she had established her qualifications in California. Necessarily, her present intention *380 would be to abandon her Illinois residence at that time. Our specific question then becomes whether appellee's departure from Illinois and her residing outside this State for a continuous period of 12 months, with such a plan and its attendant intentions, constitutes a retention or an abandonment of the residence qualification required by the Public Assistance Code.
"Residence" has no fixed, exact meaning in the law, but may have a variety of meanings dependent upon the context in connection with which it is employed as well as the subject matter involved and the purposes of such subject matter. (77 C.J.S. 290.) Two elements are necessary to create a residence, (1) bodily presence in that place and (2) the intention of remaining in that place; neither alone is sufficient to create a legal "residence." When a legal residence is established, a temporary departure therefrom with intention to retain that residence and to return to it is not an abandonment or forfeiture of that "residence." (Park v. Hood, 374 Ill. 36.) In such cases the courts usually say the controlling element in determining if "residence" has been lost or retained is the person's intention. (Coffey v. Board of Election Comrs. 375 Ill. 385.) The intention, however, must be a bona fide intention to return at some time and make that place a permanent home.
"Residence" for specific purposes is also subject to legislative definition. A "resident" for the purposes of the Public Assistance Code of 1949, has been defined by our legislature as being one who has "made his or her permanent home in this State for a continuous period of one year." (Ill. Rev. Stat. 1953, chap. 23, par. 436-10(a).) Subparagraph (b) provides such residence shall continue until such person has acquired a new residence outside this State. It is clear from this definition that "residence" as required in this act is inextricably connected with "permanent home." In Park v. Hood, 374 Ill. 36, we said "residence" and "permanent abode" as used in the election laws *381 were synonymous. Such permanency, however, does not mean a fixity for all time, as shown by subparagraph (b). It means rather a present intention of permanency and the lack of a present contrary intention.
This court, as well as the legislature, has regarded "residence" as being one's permanent home. In discussing "residence" as used in the election laws, in Coffey v. Board of Election Comrs., 375 Ill. 385, 387, we said: "It is established that a permanent abode is necessary to constitute a residence within the contemplation of the pertinent constitutional and statutory provisions. (Pope v. Board of Election Comrs. 370 Ill. 196.) A real and not an imaginary abode occupied as his home or dwelling, we have held, is essential to satisfy the residential qualifications prescribed by law."
Applying the foregoing principles and provisions of our statute to the evidence in the instant case we must conclude that the appellee has not submitted evidence sufficient to prove that she has retained her residence in Illinois. If nothing more than one's intention were required the legislature could have provided merely for a statement from the recipient rather than to provide for the submission of "evidence sufficient to prove that he has retained such residence." We do not believe the legislature regarded retention of residence in this State by one living outside the state as purely a matter of choice to fit the exigencies of the recipient's situation or as a matter of convenience to retain legal benefits. We do not believe one can have a plan or design to permanently reside in one State and a bona fide intention to retain residence in another State. The underlying and basic factor in retention of a domicile or residence in a certain place while residing in another place is one's desire or wish to regard the original place of residence as his home and intend to return at some time and permanently reside there, regarding his residence elsewhere as temporary.
*382 The evidence here shows conclusively that appellee planned to make California her permanent home. She moved there and established a residence there for the express purpose of qualifying for assistance in that State. She could not establish a permanent residence in California to qualify for assistance there without abandoning her permanent residence in Illinois. She could not have a permanent residence in both States and be eligible for assistance from both. She has persisted in remaining in California and has failed to return to resume her residence in Illinois, which fortifies the conclusion that she moved from Illinois with the intention of establishing her permanent home in California.
Under these circumstances it is our opinion that appellee abandoned her residence in Illinois in January, 1950, when she moved outside the State to establish a new permanent residence, and she is not qualified for assistance as a resident of this State.
The judgment of the circuit court of Cook County reinstating appellee to the old age assistance rolls is reversed.
Judgment reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3353421/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MOTION TO CORRECT FINDING AND/OR TO REARGUE DECISION
Pursuant to the Rules of the Court Sections 11-11 and 11-12, the plaintiff in the above entitled action requests the Court to make a correction in the calculation of the Attorney's Fees awarded in this case on December 28, 2000. The plaintiff asserts that Plaintiff's Exhibit F was mistakenly not considered at the time the Court calculated the attorney fees.
In support of this Motion, the plaintiff states:
1. This concerns the "Revised Judgment After Hearing" dated December 28, 2000 by Judge John Reynolds and a possible mistake in the Court not correctly calculating the Attorney's fees it awarded.
2. In arriving at the award of Attorney's Fees, the court did not consider the plaintiff's Exhibit F submitted at the Hearing in Damages trial held on October 12, 2000. Exhibit F (copy attached) was dated October 11, 2000 and represented the legal work through October 12, 2000 and superceded the previous one submitted back at the May 9, 2000 Hearing CT Page 1830-bo in Damages.
3. In its judgment, the court awarded Attorney's fees of $3,808.75 which was the figure as seen in plaintiff's affidavit dated May 9, 2000 which as stated above was superceded by the updated Affidavit dated October 11, 2000. The Court should have awarded the figure in Exhibit "F" or $9,585.
4. In its judgment, the court correctly awarded added Attorney's fees of $1,468.75 which was the figure as seen in plaintiff's affidavit dated December 5, 2000 at the Hearing in Damages on that date and represented time spent from October 12, 2000 to November 29, 2000;
5. The total award of Attorney's fees in this case should be the $9,585 as seen in plaintiff's Exhibit "F", plus the added fees of $1,468.75 for a total of $11,053.75.
6. The Final Total of the judgment with this requested correction should be $33,929.68
PLAINTIFF,
Robert Shluger Its Attorney
ORDER
The foregoing motion, having come before this Court, it is hereby ORDERED:
BY THE COURT
Reynolds, J.T.R.
CERTIFICATION
Service certified to all counsel of record on this the 5th day of January, 2001 and in particular to:
Michael Boynton, Esq. 63 Cherry Street Milford, CT 06460
Robert Shluger CT Page 1830-bp Plaintiff's Attorney
DN. CV 00-0435199-S SUPERIOR COURT EPSTEIN BROTHERS CARPET, INC. J.D. OF NEW HAVEN v. AT NEW HAVEN GULF INSURANCE COMPANY OCTOBER 11, 2000 and NORTHCOAST, LLC
AFFIDAVIT IN SUPPORT OF ATTORNEYS FEES
In support of an award of attorneys fees for the plaintiff pursuant to C.G.S. Sec. 49-41 a(b) and Sec. 49-42 (a), the undersigned plaintiff's counsel hereby states that he performed the following legal work in pursuance of collecting on the debt due the plaintiff from the defendants:
1. Legal work to collect the amount due and owing from the defendant Northcoast, LLC. commenced on December 18, 1998. However, legal work leading up to the direct involvement of the defendant Gulf Insurance Company commenced March 5, 1999. Notice of claim on said Bond was given to Gulf Insurance Company on June 17, 1999.
2. The number of hours of legal work leading up to the direct involvement related to this suit on the Labor and Materials Bond up to and including preparation for the Hearing in Damages on May 9, 2000 was 44.75 hours. Such work included information gathering, consultations with plaintiff, negotiations by phone and letter with defendants' counsel, notices, letters and phone calls with the defendant Gulf Insurance Co. and to its agent COP, Inc. In addition, the number of hours of legal work to attend the Hearing in Damages on May 9, 2000 was 2.5 hours.
3. The number of hours of legal work spent after May 9, 2000 in an effort to collect the judgment against the defendants was 10.63 hours. Such work included: written demands for payment upon the defendants; calls with Corporation Counsel regarding the performance and payment bond; calls and letters to Insurance Department re defendant not paying judgment; obtaining of Property Execution; calls with Sheriff to serve and collect on Execution; letters defendants' attorney re not receiving their motions, calendar markings; preparation of Objection; status with clients;
4. The number of hours of legal work spent to attend the second Hearing in Damages on July 25, 2000 was 4.7 hours. CT Page 1830-bq
5. The number of hours of legal work spent after receiving notice from the court on June 21, 2000 that the defendants were seeking to reopen the judgment, including efforts to obtain defendants' post-judgment pleadings and to attend the hearing on defendants' Motion to Reopen on September 11, 2000 was 9.60 hours.
6. The number of hours of legal work spent to prepare for and to attend the Hearing in Damages on October 12, 2000 was anticipated to be 4.5hours.
7. The total hours of legal work as aforementioned is 76.68 hours. At the rate of $125.00/hr the total is $9.585.00.
Robert Shluger Comm. of Superior Court
CERTIFICATION
Service certified by hand delivery to all counsel of record on this the 12th day of October, 2000 and in particular to:
Michael Boynton, Esq. 63 Cherry Street Milford, CT 06460
Robert Shluger Plaintiff's Attorney | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2444376/ | 4 A.3d 703 (2010)
COM.
v.
PETTY.
No. 3413 EDA 2008.
Superior Court of Pennsylvania.
June 30, 2010.
Reversed and Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2158283/ | 629 N.E.2d 1253 (1994)
Gerald M. BARBER, Appellant-Plaintiff,
v.
COX COMMUNICATION, INC., a/k/a Cox Cable of Michigan City; Cardinal Communications, Inc.; N.G. Gilbert Corporation; and Indiana Bell Telephone Company, Incorporated, Appellees-Defendants.
No. 25A03-9210-CV-318.
Court of Appeals of Indiana, Third District.
February 28, 1994.
Transfer Denied June 24, 1994.
*1255 Thomas J. Young, William N. Riley, Young & Riley, Indianapolis, Richard A. Brown, Brown & Brown, Rochester, for appellant-plaintiff.
Thomas J. Trauring, Robert M. Squier, Jr., Fell, McGarvey, Trauring & Wilson, Kokomo, for appellee Cox Communication, Inc.
John C. Muehlhausen, Miller, Tolbert, Muehlhausen, Muehlhausen & Groff, P.C., Logansport, for appellee Cardinal Communications, Inc.
Robert A. Smith, T. Neil Bemenderfer, Mark R. Smith, Bishop, Smith, Bishop & Bemenderfer, Indianapolis, for appellee N.G. Gilbert Corp.
Joset Wright-Lloyd, Legal Dept., Indiana Bell Telephone Co., Inc., Lee B. McTurnan, Wayne C. Turner, Steven M. Badger, McTurnan & Turner, Indianapolis, for appellee Indiana Bell Telephone Co., Inc.
HOFFMAN, Judge.
Appellant-plaintiff Gerald M. Barber appeals from a judgment in favor of appellees-defendants Cox Communication, Inc. a/k/a Cox Cable of Michigan City ("Cox"); Cardinal Communications, Inc. ("Cardinal") and N.G. Gilbert Corporation ("Gilbert") and against appellee-defendant Indiana Bell Telephone Company, Incorporated ("Indiana Bell") in the amount of $200,000.00 plus interest in a complex personal injury action.
Barber raises four restated issues for review:
(1) whether the trial court erred in admitting into evidence a loan receipt agreement between Barber and the City of Peru and Peru Utilities (collectively referred to as "Peru");
(2) whether the trial court erred in allowing Peru to be considered a nonparty;
(3) whether allowing the consideration of Peru as a nonparty resulted in a "double set-off" for Indiana Bell; and
(4) whether the trial court erred in granting Cox and Cardinal's motions for summary judgment.
The facts disclose that in 1981 Peru hired Gilbert to rebuild its electrical transmission lines. In December of 1981, Gilbert placed a new utility pole next to an old utility pole located in the alley behind the Burger Barn restaurant in Peru, Indiana. After removing Peru's lines and equipment from the old pole, Gilbert sawed off the top of the pole. Gilbert left wires belonging to Indiana Bell and Cox attached to the old pole.
Sometime in 1982, Indiana Bell transferred its telephone wires from the old to the new utility pole. The Indiana Bell employee performing the work noticed that the old pole had been cut off at ground level and was supported only by the wires attached to it. He did not, however, report the condition of the old pole to anyone.
In 1985, Cox's cable television franchise in the Peru area was acquired by Cardinal. Both Cox and Cardinal had worked on the old pole before it fell in 1987. Contemplating that the cable television system would be upgraded, Cardinal, with Peru's knowledge, decided to suspend the transfer of its lines from Peru's old utility poles to the new poles. In 1986, a new cable television system was installed by Cardinal who hired JDC, Inc., an independent contractor, to do much of the work. Barber was employed by JDC as a *1256 lineman. On February 17, 1987, Barber's crew began removing the cable system from the old utility pole in the alley behind the Burger Barn. During the interim, from the time the old pole had been cut off at ground level, it had sunk down into the ground approximately five to six inches concealing its dangerous condition. Barber climbed the old utility pole. After cutting the wire that was supporting the pole, the pole fell on top of Barber who was attached to it by his safety belt. Barber sustained severe injuries.
Barber filed a personal injury action naming as defendants Peru, Gilbert, Indiana Bell, Cardinal, and Cox. Cardinal and Cox filed summary judgment motions which the trial court granted on January 24, 1989. On July 31, 1989, Barber entered into a loan receipt agreement with Peru. Peru was dismissed with prejudice on November 17, 1989, without objection by the remaining defendants, Gilbert and Indiana Bell. Gilbert and Indiana Bell later filed motions asking the court leave to file amended answers to include the affirmative defense of nonparty. The court granted the defendants' requests and the court named Peru as a nonparty. The court also determined that the loan receipt agreement could be introduced into evidence. Subsequently, Barber received a $1,000,000.00 jury verdict. Sixty percent (60%) of the fault was attributable to the nonparty Peru, twenty percent (20%) of the fault was attributed to Indiana Bell, and twenty percent (20%) of the fault was attributed to Barber. Pursuant to the jury verdict, the court entered judgment in favor of Barber and against Indiana Bell in the amount of $200,000.00. The court further determined that Barber take nothing by his complaint against Gilbert. Barber now appeals.
Barber contends that the trial court erred when it admitted into evidence the loan receipt agreement, entered into between himself and Peru. Loan receipt agreements are a means by which a defendant who is potentially liable to a claimant advances funds in the form of a noninterest loan in return for a promise not to pursue the claim or not to enforce the judgment rendered against the lender/defendant. Fullenkamp v. Newcomer (1987), Ind. App., 508 N.E.2d 37, 39, trans. denied. In exchange, the plaintiff immediately receives a guaranteed sum rather than awaits the uncertain outcome of a trial. Id.
Evidence regarding a loan receipt agreement is admissible to impeach the lender's credibility. Manns v. State, Dept. of Highways (1989), Ind., 541 N.E.2d 929, 934. As explained by the Indiana Supreme Court in Manns:
"In contrast to the inadmissibility of covenants not to sue and covenants not to execute, evidence regarding loan receipt agreements are properly admissible on the issue of the lender's credibility.
`[W]hen a loan receipt agreement is executed between a plaintiff and a defendant, and that defendant, or one of his agents or representatives, appears at trial and testifies for the plaintiff, the loan receipt agreement should be admissible to impeach his testimony. That such a witness would have a pecuniary bias is obvious, for if he testifies persuasively in plaintiff's favor, he will be more likely to recover his loan to the plaintiff.'"
Id. at 934 (quoting State v. Thompson (1979), 179 Ind. App. 227, 245, 385 N.E.2d 198, 210, trans. denied).
Barber contends that pursuant to Manns, admission of a loan receipt into evidence for impeachment purposes is permissible only when the plaintiff calls the settling party, or its agents or representatives, in the plaintiff's case-in-chief. Contrary to Barber's assertion, Manns should not be so strictly construed. Although Barber did not call any of Peru's employees during his case-in-chief, he elicited favorable testimony during cross-examination.
During Barber's cross-examination, Peru employees Dwight Langer, Ronald See, Paul Hines, and David Harleford denied that Peru had any responsibility for cutting the old utility pole. Further, See testified that Gilbert would have had a reason to cut the old pole in order to gain clearance for the installation of a transformer on the new utility pole. Barber also elicited favorable testimony from Peru regarding the issue of whether he exercised due care in climbing the old *1257 pole. During Gilbert and Indiana Bell's examinations of Peru employees, evidence was presented as to the safety precautions that should be taken before climbing utility poles. Most notably, that if a lineman saw a stump adjacent to an old pole, he should probe down into the ground around the pole to determine its depth and whether the pole was safe to climb. On cross-examination by Barber, Peru employees stated that given the facts in the present case, they would not have necessarily undertaken all the tests they had previously suggested, including probing the base of the pole to check its depth.
Peru's pecuniary interest is obvious, for if it testified persuasively in Barber's favor, the more likely it was to recover its loan. See Manns, 541 N.E.2d at 934; Thompson, 179 Ind. App. at 245, 385 N.E.2d at 210. Barber's cross-examination placed in issue the credibility of the Peru employees and thereby opened the door to the use of the loan receipt agreement for impeachment purposes. Cf. Jones v. State (1986), Ind., 500 N.E.2d 1166, 1169 (party's own witness need not be declared hostile before commencing impeachment). The loan receipt agreement was admissible for impeachment purposes.
Moreover, during Indiana Bell's cross-examination of Langer, he testified as to the existence of the loan receipt agreement, without objection by Barber. On cross-examination, Langer stated that the agreement was a form of "settlement" with Barber and that there was a possibility that Peru's insurance company would be paid back. Having allowed such testimony without objection, Barber cannot now complain that the trial court erred in admitting the loan receipt agreement into evidence. Cf. Wilson v. Kauffman (1990), Ind. App., 563 N.E.2d 610, 616, trans. denied, cert. denied ___ U.S. ___, 112 S.Ct. 439, 116 L.Ed.2d 458 (admission of medical report harmless after physician's testimony); Jordan v. Talaga (1989), Ind. App., 532 N.E.2d 1174, 1191, trans. denied (admission of home movie of flood harmless after oral testimony concerning the same event).
Barber suggests that he was prejudiced by the admission of the loan receipt agreement because the agreement contained the terms and the amount of the loan. Generally, the amount of the loan should be deleted from the agreement before it is admitted into evidence. Additionally, if under the facts and circumstances of the case any statements in the agreement were drafted solely for the purpose of "manufacturing evidence" they should be deleted before the loan receipt agreement is admitted into evidence. See Strohmeyer, Loan Receipt Agreements Revised: Recognizing Substance Over Form, 21 Ind.Law Rev. 439, 441-442, n. 11 (1988), citing Ohio Valley Gas, Inc. v. Blackburn (1983), Ind. App., 445 N.E.2d 1378, 1383, trans. denied.
Here, Barber raised no objection as to any of the statements or terms contained within the agreement. In fact, at the loan receipt agreement hearing, Barber urged the court that if it was to admit the agreement into evidence, then the agreement should be admitted in its entirety. Barber has waived any issue he may have had regarding the prejudicial impact of the admission of the amount and terms of the loan receipt agreement into evidence. See Dias v. Daisy-Heddon (1979), 180 Ind. App. 657, 667, 390 N.E.2d 222, 228, n. 1 (where appellants raised no objection at trial and agreed to the inclusion of amount in a loan receipt agreement be admitted into evidence, they waived issue as to the prejudicial effect of the inclusion of settlement amount into evidence).
Next, Barber argues that the trial court erred in allowing the settling defendants, Peru, to be named as a nonparty for the purpose of fault allocation. The primary objective of the Indiana Comparative Fault Act was to modify the common-law rule of contributory negligence under which a plaintiff only slightly negligent was precluded from recovery of damages. Indianapolis Power v. Brad Snodgrass (1991), Ind., 578 N.E.2d 669, 672; Bowles v. Tatom (1989), Ind., 546 N.E.2d 1188, 1190. Rather than bar a plaintiff from recovery entirely, the plaintiff's recovery is reduced by the proportion of fault attributable to him. Id. The contributory negligence defense, however, is partially retained as a plaintiff with more than 50% of fault is precluded from recovery. Id. The means by which the act's objectives *1258 are reached is the proportional allocation of fault. Id.
Barber's reliance on Bowles v. Tatom (1989), Ind., 546 N.E.2d 1188, is erroneous. Bowles is clearly distinguishable from the present case. In Bowles, the defendant neither objected to the dismissal of the other defendants or pleaded a nonparty defense. Id. In the present case, Barber entered into the loan receipt agreement with Peru. On November 13, 1989, Barber and Peru filed their stipulation of dismissal with prejudice and the trial court dismissed Peru as a party. Thereafter, Gilbert and Indiana Bell filed leave to amend their answers to each include an affirmative defense naming Peru as a nonparty. The trial court granted Gilbert leave to amend its answer, without objection by Barber, more than two years prior to trial.
The policy generally is to liberally allow amendments of pleadings and leave to amend should be given unless the amendment would result in prejudice to the opposing party. Huff v. Travelers Indemnity Co. (1977), 266 Ind. 414, 420, 363 N.E.2d 985, 989. The trial court is vested with broad discretion in determining whether to permit amendments to pleadings. Id. Additionally, when a claim or defense asserted in the amended pleading arose out of an occurrence that had been set forth in the original pleading, the amendment relates back to the date of the original pleading. Ind.Trial Rule 15(C). The trial court did not abuse its discretion in allowing Gilbert and Indiana Bell leave to file amended answers which included affirmative defenses naming Peru as a nonparty. Moreover, Gilbert and Indiana Bell could not have objected to the voluntary dismissal of Peru as a party. Clearly, Barber and Peru had a right to enter into a settlement agreement. See eg., State v. Ingram (1981), Ind., 427 N.E.2d 444, 446; Amer. Transport v. Cent. Ind. R.R. Co. (1970), 255 Ind. 319, 323, 264 N.E.2d 64, 66; Klukas v. Yount (1951), 121 Ind. App. 160, 166, 98 N.E.2d 227, 229 (Indiana courts have long approved parties settling litigation through the use of loan receipt agreements).
Barber also argues that allowing Peru to be considered as a nonparty results in a double set-off for Indiana Bell. As Barber himself concedes, the trial court's statement of judgment did not result in a double setoff for Indiana Bell. Further, Indiana Bell did not claim entitlement to a pro tanto credit for the sums which Barber received under the loan receipt agreement. As the trial court correctly recognized, Indiana Bell is not entitled to a setoff precisely because that would produce a double credit attributable to Peru's fault.
Finally, Barber argues that the trial court erred in granting Cox and Cardinal's motions for summary judgment. The purpose of summary judgment is to terminate litigation for which there can be no factual dispute and which can be determined as a matter of law. Chambers v. American Trans Air, Inc. (1991), Ind. App., 577 N.E.2d 612, 614, trans. denied. This Court's standard of review is the same as that used by the trial court: whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 994. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the record. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51, 54.[1]
Barber contends that material questions of fact exist as to whether Cox and Cardinal were negligent in failing to warn Barber of the dangerous condition of the utility pole. Negligence consists of (1) a duty owed to the plaintiff, (2) a breach of that duty by the defendant, (3) which proximately causes plaintiff's damages. Peak v. Campbell (1991), Ind., 578 N.E.2d 360, 361. Whether a duty exists is a question of law for the court and absent a duty, no actionable negligence can arise based on a breach of *1259 such duty. Robinson v. Kinnick (1989), Ind. App., 548 N.E.2d 1167, 1168, trans. denied.
Where the instrumentality causing injury is in the control of the independent contractor or some third party other than the owner or occupier of the property, the complaint contractor's employee must show that the owner/occupier assumed control of the dangerous instrumentality or had superior knowledge of the potential dangers involved; otherwise, the owner/occupier owes no duty to the contractor's employee. See Howard v. H.J. Ricks Const. Co., Inc. (1987), Ind. App., 509 N.E.2d 201, 205, trans. denied; Plan-Tec, Inc. v. Wiggins (1983), Ind. App., 443 N.E.2d 1212, 1219. Here, Barber does not assert that there was anything dangerous about Cox and Cardinal's cable television wires or their system. Rather, the dangerous instrumentality in this instance is the utility pole which was owned by Peru. Cox and Cardinal as licensees were permitted to attach their equipment to Peru's utility poles. However, they had no right or duty to maintain, replace or exert control over the pole itself nor is there any evidence in the record from which it could be reasonably inferred that they voluntarily assumed these obligations. Despite Barber's contention otherwise, there is no evidence in the record from which it can be inferred that Cox and Cardinal had superior knowledge of this particular utility pole's dangerous condition.
Additionally, as to Cox, it no longer had possession and control of the property and it is not liable for injuries arising therefrom, because it was no longer in a position to prevent such injuries. See Rogers v. Grunden (1992), Ind. App., 589 N.E.2d 248, 255, trans. denied. Cox transferred any interest it may have had as a licensee in 1985, more than one year prior to Barber's injury.
Barber also alleges that Cox and Cardinal breached a duty to promptly transfer the cable television wires. However, it is undisputed that Peru knew that Cox and Cardinal were upgrading their system and it would be some time before Cox and Cardinal removed their equipment from the old utility poles. The trial court properly granted Cox and Cardinal's motions for summary judgment. The judgments of the trial court are affirmed.
Affirmed.
STATON and ROBERTSON, JJ., concur.
NOTES
[1] This Court notes that summary judgment for Cox and Cardinal was entered on January 24, 1989, prior to the effective date of the 1991 amendments to Ind.Trial Rule 56; therefore, specific designation of evidence by the parties was not required. See Jackson v. Blanchard (1992), Ind. App., 601 N.E.2d 411, 415. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1284395/ | 706 P.2d 776 (1985)
Barbara J. KUSSMAN, Petitioner,
v.
CITY AND COUNTY OF DENVER, Respondent.
No. 83SC214.
Supreme Court of Colorado, En Banc.
September 30, 1985.
Rehearing Denied October 21, 1985.
*777 E. Gregory Martin, Martin & Snyder, Boulder, and Debra A. Halperin, Dominick & Halperin, Boulder, for petitioner.
Stephen H. Kaplan, Denver City Atty., Carl R. Mangino, Asst. City Atty., Denver, for respondent.
Bennett S. Aisenberg, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.
Richard W. Laugesen, Denver, amicus curiae.
DUBOFSKY, Justice.
We granted certiorari in Kussman v. City and County of Denver, 671 P.2d 1000 (Colo.App.1983), to consider whether a tortfeasor found liable for less than the full amount of the plaintiff's damages is entitled to have deducted from its liability the amount paid in settlement to the plaintiff by another tortfeasor responsible for the same injury. The court of appeals held that the Uniform Contribution Among Tortfeasors Act (Act), §§ 13-50.5-101 to -106, 6 C.R.S. (1984 Supp.), requires a deduction for the settlement amount. We disagree and reverse.
I.
On September 18, 1977, the plaintiff's van collided with a fire truck owned by the City and County of Denver (city) at an intersection in Denver. At the time of the collision, Janna Gray was driving the plaintiff's van and the plaintiff, Barbara Kussman, was a passenger in the van. The plaintiff commenced an action against the city in Denver District Court, alleging that the injuries she suffered in the collision were caused by the negligence of the driver of the fire truck, and that the city was liable for this negligence under the doctrine *778 of respondeat superior. The city, in its answer, claimed inter alia that Gray's negligence was the sole cause of the plaintiff's injury, and that Gray's negligence should be imputed to the plaintiff in order to defeat her claim. The city also joined Gray as a third-party defendant, alleging that it had suffered $2,055 in damages as a result of Gray's negligence.[1]
During trial, the plaintiff gave Gray a covenant not to sue in exchange for a payment of $35,000. The jury found that the city was 51% responsible for the accident and Gray 49%. See section 13-21-111, 6 C.R.S. (1973 & 1984 Supp.). The jury also imputed Gray's negligence to the plaintiff because the plaintiff owned the car in which she was a passenger. See Moore v. Skiles, 130 Colo. 191, 274 P.2d 311 (1954).[2] The jury assessed the city's damages at $2,000 and the plaintiff's damages at $164,737. By stipulation of the parties, the plaintiff's damages were reduced to $153,037 by deducting $11,700 that the plaintiff had received from her insurance carrier under her personal injury protection coverage. See § 10-4-713(1), 4 C.R.S. (1984 Supp.). Because the plaintiff had been found 49% at fault as a result of the negligence imputed from Gray, judgment was entered against the city in favor of the plaintiff for 51% of the plaintiff's total damages, or $78,048.
The city filed a motion to amend judgment, contending that it was entitled under the Act to set off Gray's $35,000 settlement with the plaintiff from the judgment amount of $78,048. The district court denied the motion. The court of appeals reversed, holding that the city was entitled to set off the amount of the settlement under section 13-50.5-105 of the Act, making the city liable to the plaintiff for $43,048 rather than $78,048. We disagree.
II.
The question in this case is whether Gray and the city are "liable in tort for the same injury" under section 13-50.5-105 in a manner that permits the city to set off from its liability the $35,000 Gray paid in consideration for the covenant not to sue. Section 13-50.5-105 provides:
(1) When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.
In order to interpret the phrase "liable in tort for the same injury," we must look at the language and policies of the Act as a whole.
The underlying purpose of the Act is to permit the equitable apportionment of damages among the tortfeasors responsible for those damages. National Farmers Union Property and Casualty Co. v. Frackelton, 662 P.2d 1056, 1058 (Colo.1983); Hayon v. Coca-Cola Bottling Co., 375 Mass. 644, 378 N.E.2d 442, 445 (1978); Uniform Contribution Among Tortfeasors Act, Commissioners' Prefatory Notes, 12 U.L.A. 59-60 (1975). Towards this end, section 13-50.5-102 of the Act provides for contribution under the following circumstances:
(1) Except as otherwise provided in this article, where two or more persons become jointly or severally liable in tort for the same injury to person or property *779 or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
(2) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.
The "pro rata share" of damages assigned to each tortfeasor is equal to the degree of fault assigned to the tortfeasor by the jury. § 13-50.5-103.[3] The Act's aim is to ensure that no tortfeasor is compelled to pay more than its appropriate share of the damages as measured by the degree of fault assigned to it by the jury. Where a tortfeasor pays more than its share, it is entitled to contribution from other tortfeasors to the extent of excess payment. Section 13-50.5-105, providing for reduction of the judgment entered against tortfeasors to the extent of the settlement amount paid by tortfeasors who have been released, furthers this aim by ensuring that a tortfeasor who has not settled will not bear the full burden of damages simply because another tortfeasor has settled. See Uniform Contribution Among Tortfeasors Act § 4, Commissioners' Comment, 12 U.L.A. 99.
In our view, the Act's policy of equitably distributing damages is best served in this case by not deducting the amount paid by Gray in settlement from the judgment against the city. The city was found 51% at fault and judgment was rendered against it for 51% of the plaintiff's damages. Deducting Gray's settlement figure from the judgment rendered against the city would reduce the city's liability below its fair share as measured by fault and present the city with a windfall.
The city argues that this conclusion is incorrect because, had Gray been joined as a defendant by the plaintiff in the original suit, Gray would have been liable for 49% of the $78,048 liability of the city. Under this hypothesis, the $35,000 settlement figure, if deducted from the judgment against the city, would not be a windfall, but rather would represent Gray's share, as a defendant, of the $78,048 in damages. The city urges the following analysis: If Gray had been joined as a defendant, the city and Gray would have been jointly and severally liable for the full $153,000 in damages. However, the city still would have been able to impute Gray's negligence to the plaintiff. At the same time, Gray would not have been able to do so because a driver cannot impute his own negligence to a passenger-owner as a defense to the passenger's claim against the driver for negligence. Sommermeyer v. Price, 198 Colo. 548, 552, 603 P.2d 135, 138-39 (1979). Therefore, the city contends, the city would have been jointly and severally liable with Gray for $78,048 of the damages only, while Gray, unable to impute her negligence to the plaintiff, would be individually liable for the remainder of the damages. Because the city thus would have been liable for only 51% of the $78,048, a judgment against it for the entire amount, according to the city, would force payment of "more than [the city's] pro rata share of the common liability" and entitle it to contribution from Gray under section 13-50.5-102(2). The city concludes that because it would be eligible for contribution from Gray had she been joined as a defendant, it is eligible here to deduct Gray's settlement amount from the judgment against it.
We reject this argument. It is true that section 13-50.5-102(2) states that a tortfeasor *780 who has paid more than his "pro rata share of the common liability" may recover contributions from the other tortfeasors for the amount paid in excess of the pro rata share. However, the city's $78,048 share of damages could not be viewed as a "common liability" of the city and Gray within the meaning of section 13-50.5-102(2), even under the analysis urged by the city. The term "common liability" must be interpreted in light of the final sentence of section 13-50.5-102(2): "No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability." (emphasis supplied). The city's pro rata share of the entire liability was 51%, which was more than Gray's 49% pro rata share of the entire liability. Therefore, under section 13-50.5-102(2), Gray could not have been required to contribute anything towards the city's 51% share of damages once she had discharged, either through contribution or direct payment to the plaintiff, her own 49% share of the entire damages.
Moreover, other language in the Act convinces us that a tortfeasor's proportionate share of liability cannot be considered a "common liability" where, as here, that share of liability has been severed from the entire liability arising from the plaintiff's injury. A "common liability" giving rise to a right of contribution exists only when tortfeasors are "jointly or severally liable in tort for the same injury." § 13-50.5-102(1). This latter phrase denotes a situation in which each tortfeasor may be held liable for the entire damages arising from a single injury. Miller v. Singer, 131 Colo. 112, 279 P.2d 846 (1955); see also ICI America, Inc. v. Martin-Marietta Corp., 368 F. Supp. 1148, 1151 (D.Del. 1974) (predicate for contribution under Act is that two or more persons are legally liable for same injury); Walker v. Patterson, 325 F. Supp. 1024, 1026 (D.Del.1971) (same); Rowe v. John C. Motter Printing Press Co., 273 F. Supp. 363, 365 (D.R.I. 1967) (same); Cacchillo v. H. Leach Machinery Co., 111 R.I. 593, 305 A.2d 541, 542-43 (1973) (same). Here, the city, taking advantage of the comparative negligence law, section 13-21-111, defended itself by imputing Gray's negligence to the plaintiff; as a result, the liability for the plaintiff's injury was divided into two independent components: the city's liability and the plaintiff's liability. Once the liability was divided according to fault and judgment rendered against the city for no more than its independent portion of the liability to the plaintiff, the predicate for contributiona joint or several liability for the entire damages resulting from the plaintiff's injurywas erased. In other words, the city cannot escape its joint and several liability for the entire damages here by claiming that the liability may be properly apportioned between the plaintiff and itself, and at the same time claim that the independent portion of liability attributable to the city remains a "joint and several liability" for purposes of contribution. This conclusion is consonant with the very premise of the Actthat equity compels contribution only where a tortfeasor is held liable for more than its fair share of damages. Uniform Contribution Among Tortfeasors Act, Commissioners' Prefatory Note, 12 U.L.A. 60.
In addition, not deducting the settlement amount from the judgment here comports with goals of the Act other than the equitable distribution of damages among tortfeasors. First, under the Act, joint and several liability is retained; each tortfeasor remains liable for all damages incurred by the plaintiff to the extent that other tortfeasors are insolvent or judgment-proof. § 13-50.5-103; National Farmers Union, 662 P.2d at 1059; Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883, 889 (Colo. 1983); see also Martinez v. Stefanich, 195 Colo. 341, 577 P.2d 1099 (1978) (retaining joint and several liability under comparative negligence act). The retention of joint and several liability ensures that the plaintiff will be fully compensated for his or her injury, and that the risk of an insolvent tortfeasor falls upon the other tortfeasors rather than upon the plaintiff. National *781 Farmers Union, 662 P.2d at 1059; Mountain Mobile Mix, 660 P.2d at 889; Martinez, 195 Colo. at 343, 577 P.2d at 1100-01.
Refusing to deduct Gray's settlement amount from the judgment against the city serves the Act's overriding policy of providing full compensation for the plaintiff's injuries. The plaintiff here was deprived of her right to collect 49% of her damages from the city because of the negligence imputed to her; simultaneously, she surrendered her right to collect those damages from Gray in exchange for $35,000.[4] Deducting that $35,000 from the judgment against the city would deprive the plaintiff of the benefit she received in exchange for Gray's 49% share of the damages and diminish the remaining damages owed by the city by almost half. Therefore, reduction of the judgment against the city would not only present the city with a windfall, but would do so to the plaintiff's detriment.[5]
Further, the structure and history of the Act evince an intent to encourage settlement of claims even when the settlement results in an inequitable distribution of damages among tortfeasors. The original 1939 Act, as promulgated by the National Conference of Commissioners on Uniform State Laws, provided that a settlement released the settling tortfeasor from contribution liability only if the release required the damages recoverable from the remaining tortfeasors to be reduced by the "pro rata share of the released tortfeasor." Uniform Contribution Among Tortfeasors Act of 1939, § 5, 12 U.L.A. 58. This provision aimed at ensuring an equitable distribution of damages; the nonsettling tortfeasors would not be required to pay any portion of the settling tortfeasor's pro rata share. Uniform Contribution Among Tortfeasors Act, Commissioners' Comment, 12 U.L.A. 99. However, under the 1955 version of the Act adopted in Colorado, the *782 settling tortfeasor is always relieved from contribution liability if the release or covenant not to sue is given in good faith; the claim against the nonsettling tortfeasors is reduced only by the consideration paid for the release or covenant not to sue, or by an amount stated in the settlement, whichever is greater. § 13-50.5-105. Combined with the retention of the joint and several liability rule, this provision means that nonsettling tortfeasors may be forced to bear more than the portion of damages attributable to their relative degree of fault.
Despite the potential for an inequitable result, section 13-50.5-105 as it currently exists was formulated to encourage settlements. According to the Commissioners' Comment to section 4 of the 1955 Act, plaintiffs had proved unwilling to settle under the 1939 Act because they had no way of knowing in advance the exact amount of the "pro rata share" they were giving up. 12 U.L.A. at 99. At the same time, tortfeasors were reluctant to settle if the release provided for the reduction of the claim in a fixed amount, for then they remained exposed under the 1939 Act to contribution liability in an uncertain amount. Id. Therefore, deeming the encouragement of settlements to be a more important public policy than the equitable distribution of losses among tortfeasors, the Commissioners amended the Act into its current form. Id. at 100; Sobik's Sandwich Shops, Inc. v. Davis, 371 So. 2d 709, 711-12 (Fla.App.1979); Bishop v. Klein, 380 Mass. 285, 402 N.E.2d 1365, 1371 (1980); see also Davis v. Flatiron Materials Co., 182 Colo. 65, 71, 511 P.2d 28, 32 (1973) (Colorado public policy favors settlements provided they are fairly reached).
Not deducting the settlement amount from the judgment against the city promotes the Act's goal of encouraging settlements. If the plaintiff knew that any settlement reached would be deducted from the proportionate share owed to the plaintiff by another tortfeasor, the plaintiff would be less likely to settle. Similarly, tortfeasors might refuse to settle, hoping that their just share of damages would be reduced by the settlement amount paid by another tortfeasor.
In light of the Act's policies, we hold that a settling and a nonsettling tortfeasor are "liable in tort for the same injury" within the meaning of section 13-50.5-105 only when judgment is rendered against the nonsettling tortfeasor for an amount greater than its proportionate share of damages as measured by its degree of fault. Where a tortfeasor is found liable for an amount in excess of its proportionate share of damages, it may deduct the settlement amount paid by another tortfeasor from its liability up to the judgment amount in excess of its proportionate share of damages. However, where judgment is rendered against a tortfeasor for no more than its proportionate share of liability, it is not eligible for deduction of the settlement amount from the judgment. Therefore, the court of appeals erred in deducting the amount paid by Gray in settlement from the judgment against the city.
Judgment reversed and case remanded to the court of appeals with directions to reinstate the district court judgment.
NEIGHBORS, J., specially concurs, and ERICKSON, J., joins in the special concurrence.
KIRSHBAUM, J., does not participate.
NEIGHBORS, Justice, specially concurring:
I concur in the judgment of the court. However, I write separately to express my views regarding the applicability of the Uniform Contribution Among Tortfeasors Act (Act), sections 13-50.5-101 to -106, 6 C.R.S. (1984 Supp.), to this case and Perlmutter v. Blessing, 706 P.2d 772 (Colo. 1985), both of which are announced today.
*783 A.
My analysis begins with the premise that the purpose of the Act is to permit the equitable apportionment of a claimant's damages among the joint tortfeasors whose conduct combined to cause those damages. § 13-50-105, 6 C.R.S. (1984 Supp.). See Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883, 889 (Colo.1983) (the Act "provides for the equitable apportionment of damages among tortfeasors according to relative degrees of fault"), and National Farmers Union Property & Casualty Co. v. Frackelton, 662 P.2d 1056, 1058 (Colo.1983) (the Act "was designed to remedy a harsh common law rule.... [It permits] the shifting of losses equitably among those tortfeasors who cause the damages."). Thus, the effect of the Act on a claimant's right to recover damages from joint tortfeasors is not diminished.
The Act affects claimants only in three ways. First, the principle of joint and several liability is retained by the Act so that each tortfeasor is responsible to the claimant for the full amount of the judgment reflecting the fact finder's award of damages. Mountain Mobile Mix, 660 P.2d at 889; Frackelton, 662 P.2d at 1059. Second, the Act abrogates the common law rule that the release of one joint tortfeasor releases the remaining joint tortfeasors from all further liability to the claimant. See, e.g., Cingoranelli v. St. Paul Fire & Marine Casualty Insurance Co., 658 P.2d 863 (Colo.1983); Price v. Baker, 143 Colo. 264, 352 P.2d 90 (1959) (common law rule that release of one releases all). Third, the Act codifies the Colorado principle that monies received by the claimant from a joint tortfeasor in return for a covenant not to sue or execute against that tortfeasor must be credited against the damages assessed against the non-settling tortfeasors.[1] § 13-50.5-105, 6 C.R.S. (1984 Supp.). See also Cox v. Pearl Investment Co., 168 Colo. 67, 450 P.2d 60 (1969).
The Act does not define the term "joint tortfeasor." Prosser states that a joint tort is one in which "two or more persons may be joined as defendants in the same action at law." W. Prosser, The Law of Torts § 47, 293 (4th ed. 1971) (emphasis added). A joint tortfeasor is defined in Black's Law Dictionary as follows: "Where two or more persons owe to another the same duty and by their common neglect such other is injured, the tort is `joint.'" Black's Law Dictionary 973 (4th ed. 1957) (emphasis added).
B.
With these principles in mind, I turn first to a discussion of Kussman. In my view, the threshold inquiry is whether Janet Gray (Gray) remained a joint tortfeasor with the City of Denver (City) vis-a-vis Barbara Kussman (plaintiff or Kussman) under *784 the Act after Gray's negligence was imputed to the plaintiff. The other side of the coin is whether Kussman can assume the status of a joint tortfeasor after the doctrine of imputed negligence was invoked by the City.
Kussman brought suit only against the City. The City, in turn, filed a third-party complaint against Gray in which it alleged that Gray's negligence should be imputed to Kussman. Hence, when the City chose to submit to the jury the issues concerning Gray's negligence and the imputation of that negligence to Kussman, it elected its remedy. In these circumstances, a joint tortfeasor may either take advantage of a legal and factual theory of imputation or claim a credit for the settlement under section 13-50.5-105, 6 C.R.S. (1984 Supp.). Having chosen the former path, the negligence of Gray was imputed to Kussman.
While the principle has never been precisely articulated by this court, it is clear that a plaintiff can never be a joint tortfeasor with regard to the plaintiff's own damage claim. See Frackelton, 662 P.2d at 1063 ("It is only necessary that `two or more persons become jointly or severally liable in tort for the same injury to person or property.'") (emphasis added); Mountain Mobile Mix, 660 P.2d at 889 ("Historically, the doctrine of joint and several liability places the full obligation to pay damages on each and every defendant.... [The Act] opted to retain this rule.") (emphasis added); Miller v. Singer, 131 Colo. 112, 116, 279 P.2d 846, 848 (1955) ("[A]ll those who actively participate in any manner in the commission of a tort are jointly and severally liable therefor....").
The effect of imputing Gray's negligence is to apportion 49 percent contributory negligence to Kussman and 51 percent negligence to the remaining tortfeasor, the City. Any other interpretation of the facts and the law confuses the doctrine of comparative negligence with that of contribution. The net result is no different than a case in which the claimant herself is negligent rather than having a third party's negligence imputed to her. I know of no authority which adopts the rule that a claimant can be characterized as a joint tortfeasor with others concerning the claimant's damages. The logical extension of such a holding would permit a claimant to sue himself or herself. This extension would be contrary to the generally accepted notion that a plaintiff's negligence relates only to a failure to use reasonable care for his or her own protection, while a defendant's negligence relates to a lack of such care for the safety of others. American Motorcycle Association v. Superior Court, 20 Cal. 3d 578, 146 Cal. Rptr. 182, 578 P.2d 899 (1978) ("[I]nsofar as the plaintiff's conduct creates only a risk of self-injury, such conduct, unlike that of a negligent defendant, is not tortious."). Id., 578 P.2d at 906. W. Prosser, The Law of Torts § 65, 418 (4th ed.1971).
At least one court has recognized this comparative negligence issue involving imputed negligence. In Laubach v. Morgan, 588 P.2d 1071 (Okla.1978), the court noted:
We do not deal here with such problems as imputed or vicarious liability, where negligence of two or more tortfeasors is treated as a unit, so that so far as the comparative negligence doctrine is concerned, it is the same as if only one defendant is involved.
Id. at 1074 n. 13 (emphasis added). Thus, the negligence of persons in an imputed negligence relationship ought to be treated as a unit, whether they are plaintiffs or defendants, for purposes of comparative negligence. This view is consistent with the combined negligence of defendants rule adopted by this court in Mountain Mobile Mix, 660 P.2d 883 (Colo.1983). The observation of the court in Laubach leads me to conclude that the Act has no application in this case because, as a result of the "unit" rule, only one defendant is involved. Here, instead of the imputation doctrine applying *785 between defendants, the City elected to seek its application between a third-party defendant and the plaintiff. When the trial court imputed Gray's negligence to Kussman, Gray's negligence became that of Kussman.
The dispute over how much money Kussman is entitled to receive and who shall pay what percentage is answered simply. The inquiry is resolved by a consideration of the principles of comparative negligence. Kussman is deemed 49 percent at fault. Therefore, she may only receive up to 51 percent of the damages fixed by the jury from the City, the only defendant recognized after imputation of negligence. The City cannot be forced to pay more than 51 percent of the total damages; not because of the pro rata requirements of the Act, but because of the Colorado principles governing comparative negligence.
In addition, a predicate for contribution under the Act is that two or more persons are legally liable for the same injury. I.C.I. America, Inc. v. Martin Marietta Corp., 368 F. Supp. 1148, 1151 (D.Del.1974); Walker v. Patterson, 325 F. Supp. 1024, 1026 (D.Del.1971); Rowe v. John C. Matter Printing Co., 273 F. Supp. 363, 365 (D.R.I. 1967); Cacchillo v. H. Leach Machinery Co., 305 A.2d 541, 543 (R.I.1973). It follows then that once negligence has been imputed from one tortfeasor to the plaintiff, the remaining tortfeasor has no one from whom to seek contribution.
In summary, the imputation of Gray's negligence to the plaintiff at the request of the City terminated the joint tortfeasor relationship between Gray and the City. Moreover, the imputed negligence does not render Kussman a joint tortfeasor. Thus, the Act is inapplicable and the City is not entitled to any credit for the amount of the settlement.
C.
In contrast to Kussman, I believe the Act applies in Perlmutter and I agree with the majority's conclusion that the amount of the settlement should be deducted from the total damages.
At first blush, the result in Perlmutter appears to be unfair. Such is not the case, however. The judgment against Harmony Homes was $67,037. Of that amount, $44,427 in damages were assessed as the joint and several liability against all of the joint tortfeasors. Accordingly, the claimants could have pursued efforts to collect the $44,427 judgment from just one of the joint tortfeasors. If one of those tortfeasors paid the entire joint and several judgment, that tortfeasor would have no remedy against his fellow tortfeasors absent the Act. Mountain Mobile Mix, 660 P.2d at 889; Frackelton, 662 P.2d at 1058. Here, one of the joint tortfeasors settled with the claimants by payment of $30,000 which released it from all liability to the claimants. The release discharged the settling tortfeasor's liability to the plaintiffs not only for the $67,000 in damages, but also from any exposure to execution on the joint and several judgment. § 13-50.5-105, 6 C.R.S. (1984 Supp.). Thus, the trial court properly deducted the settlement amount from the total damage award. The non-settling tortfeasors are, therefore, liable for $37,037, approximately $7,000 less than the limit of their exposure as reflected in the joint and several judgment. This application of the statute gives full and complete recognition to the Act. First, the claimant's damage award is unaffected as required by section 13-50.5-102(2), 6 C.R.S. (1984 Supp.). Second, the non-settling tortfeasors have obtained a credit of over $7,000 against their liability as mandated by section 13-50.5-105(1)(a), 6 C.R.S. (1984 Supp.).
I am authorized to say that Justice ERICKSON joins me in this special concurrence.
NOTES
[1] The city's third-party claims for indemnity and contribution from Gray were dismissed prior to trial.
[2] Under Moore v. Skiles, 130 Colo. 191, 274 P.2d 311 (1954), the owner-passenger is presumed to have the right and ability to control the actions of the guest-driver, and the driver's negligence may be imputed to the owner. The plaintiff does not challenge the imputation of Gray's negligence to her.
[3] Section 13-50.5-103 provides:
When there is a disproportion of fault among joint tortfeasors, the relative degrees of fault of the joint tortfeasors shall be used in determining their pro rata shares solely for the purpose of determining their rights of contribution among themselves, each remaining severally liable to the injured person for the whole injury as at common law.
See also Act of July 1, 1985, ch. 125, 1985 Colo.Sess.Laws 575.
[4] Under Sommermeyer v. Price, 198 Colo. 548, 603 P.2d 135 (1979), imputation of negligence as a defense is available only to a third party. Therefore, Gray could not impute her own negligence to the plaintiff, and the plaintiff would have been able to sue Gray. The plaintiff bargained away the right to sue Gray in the covenant not to sue.
[5] We recognize that in other cases the rule we adopt today may permit the plaintiff to recover an amount greater than the total damages assessed by the jury. For example, if the plaintiff in this case had received $100,000 in settlement from Gray, this amount when combined with the $78,048 judgment against the city would have yielded a recovery greater than the plaintiff's total damages assessed by the jury. For a number of reasons, under the Act there should be no reduction of the judgment even in this situation. First, the nonsettling tortfeasor in such a case would pay no more than its proportionate share of the damages; as soon as it made any payment in excess of this amount it would be permitted to deduct the settlement amount from the judgment against it up to the amount it is required to pay in excess of its fair share of the liability. Cf. Shantz v. Richview, Inc., 311 N.W.2d 155 (Minn.1980) (refusing to deduct settlement from judgment where judgment tortfeasor liable only for its proportionate share of damages, even though settling tortfeasor found not liable at all; judgment tortfeasor cannot complain of windfall to plaintiff so long as it is not liable for more than its fair share of damages); Clemtex, Ltd. v. Dube, 578 S.W.2d 813 (Tx.Ct.Civ.App.1979) (reaching same result). Second, the settling tortfeasor would have made its payment aware of the risk that it might be paying more than a jury would ultimately require; this is the risk inherent in all settlements. As borne out in this case, the plaintiff always takes the opposite risk, that the settlement will amount to less than the ultimate jury award. Courts have never attempted to redress the inequities that appear in settlements when viewed with the aid of hindsight; otherwise, settlements would not be final and parties would be reluctant to settle. Finally, a contrary result would discourage settlements in another way: the nonsettling tortfeasor would pay less than its proportionate share of damages after the settlement amount is deducted, and tortfeasors would have an incentive not to settle, hoping that intransigence would be rewarded when another tortfeasor settled for an amount in excess of its true liability. See Leger v. Drilling Well Control, Inc., 592 F.2d 1246, 1250-51 (5th Cir.1979) (refusing to deduct settlement in excess of settler's liability from pro rata share of remaining tortfeasor on ground that contrary result would reward refusal to settle). In light of these considerations, we believe that a refusal to reduce the judgment by the settlement amount is justified under the Act even if it results in overcompensation to the plaintiff, particularly since a contrary rule would defeat, in cases such as the present one, the Act's overriding goal of ensuring full compensation.
[1] The question of whether the amount of the settlement should be deducted from the jury's verdict or from the damage figure remaining after P.I.P. benefits, comparative negligence percentages, statutory damage limits, and other deductions or credits are considered is not an issue presented in these cases. The authorities which have addressed that question are in conflict. Compare, e.g., Truesdale v. South Carolina Highway Dep't, 264 S.C. 221, 213 S.E.2d 740, (1975) (first reduce the award by the settlement then reduce it by the comparative negligence percentage); and Jackson v. Barton Malow Co., 131 Mich.App. 719, 346 N.W.2d 591 (1984) (subtract the settlement figure from the award prior to subtracting the comparative negligent percentage); with, e.g., Lemos v. Eichel, 83 Cal. App. 3d 110, 118-19, 147 Cal. Rptr. 603, 606-07 (1978) ("the correct procedure is to apply each plaintiff's contributory fault percentage reduction to the total damage and reduce the resulting figure by the amount of that plaintiff's pretrial settlement"); Scott v. Cascade Structures, 100 Wash.2d 537, 673 P.2d 179, 183 (1983) (same); Gomes v. Brodhurst, 394 F.2d 465 (3d Cir.1967) (same); Theobald v. Angelos, 44 N.J. 228, 208 A.2d 129 (1965) (same); Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W.2d 106 (1963) (same).
For a more in depth discussion of the amount of damages the plaintiff can recover from non-settling tortfeasors after one or more tortfeasors settles with the plaintiff prior to trial, see J. Fleming, Report to the Joint Committee of the California Legislature on Tort Liability on the Problems Associated with American Motorcycle Ass'n v. Superior Court, 30 Hastings L.J. 1465, 1494-98 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2011032/ | 163 N.W.2d 573 (1968)
WALTER E. HELLER AND COMPANY, Inc., Respondent,
v.
Kyrwood WARNER, et al., Appellants.
No. 40979.
Supreme Court of Minnesota.
December 20, 1968.
*575 Rice & Evans, Pipestone, for appellants.
Carl E. Erickson, Brainerd, for respondent.
Heard before KNUTSON, C. J., and NELSON, MURPHY, OTIS, and GALLAGHER, JJ.
OPINION
FRANK T. GALLAGHER, Justice.
Defendants appeal from a denial of their motion for judgment notwithstanding the verdict or a new trial following a directed verdict in favor of plaintiff.
In August 1960, E. G. Clinton Company (Clinton) erected a building suitable for raising chickens on the farm of defendant Kyrwood Warner pursuant to an order solicited from and signed by him and by his father, defendant John Warner, on June 29, 1960. The order stated that the price for the building was $21,962 and the terms were $5,420 down with a 6-year payment plan and quarterly payments. The order was subject to company approval, and a "credit check" was conducted before the downpayment check was cashed in late July 1960.
It is undisputed that Kyrwood Warner was to attempt to secure outside financing and was unable to do so. The Clinton salesman told him that financing could be arranged through Clinton. Although it is not clear from the record, it appears that these arrangements were made during the interval used for the "credit check." The original plan was to finance through Universal CIT, but the financing was eventually arranged through Thorp Finance Corporation (Thorp).
On October 11, 1960, Clinton's treasurer went to the Warner farm and secured the signatures of Kyrwood Warner and his wife, Carmen, on a note in the amount of $21,983.60 and a real estate mortgage securing payment of that amount on the property on which the new building was located. The note provided for payment in 19 consecutive quarterly installments of $1,099.18 each and stated that it was secured by an installment sales contract and real estate mortgage. No installment contract was signed until December 29, 1960. When signed, it stated the total price as $27,403.60, the cash price as $21,962, the "time price differential" as $5,441.60,[1] and the downpayment as $5,420, leaving $21,983.60 as the unpaid balance. The payment terms were the same as those in the note signed October 11, except that the contract specified 20 payments whereas the note specified 19.
Clinton's treasurer and Kyrwood Warner both testified that the reason the installment contract was signed in December rather than October was to permit payment of the first quarterly installment to coincide with the first sale of chickens to be raised in the building. It was expected that there would thus be funds available to make the payment when it came due. The treasurer also testified that the note and mortgage were obtained at Thorp's request, and the installment contract form was provided by Thorp. Clinton assigned the contract to Thorp the day it was signed and was paid the discount price, $16,542.
On August 25, 1961, the conditional sales contract was reassigned to Clinton by Thorp and on August 30 Clinton assigned it to plaintiff, Walter E. Heller and Company, Inc. (Heller), a nationally known company engaged in the finance business. *576 The latter assignment was part of a blanket assignment of over a million dollars in accounts. Because Heller did not wish to rely on the blanket assignment to transfer real estate mortgages, the mortgage from Kyrwood Warner and his wife to Clinton was assigned individually on June 17, 1963. The contract, note, and mortgage signed by the Warners were all in the possession of Heller from the time of the blanket assignment on August 30, 1961.
Kyrwood Warner made the required payments to Thorp and then to Heller regularly until February 1964, at which time there was an unpaid balance on the contract and note of $11,599.85. Heller commenced this action to recover that amount, and the Warners defended on the ground that the note they had signed was usurious. The trial court directed a verdict in favor of plaintiff, and defendants appeal.
The Warners raise basically three issues: (1) Whether the original order was in fact a contract for sale, making the subsequent acceptance of the note by Clinton a forbearance; (2) whether the conditional sales contract (executed some months after the note and long after the building was completed) is a valid conditional sales contract so as to remove the case from the usury laws; and (3) whether plaintiff, in taking the contract, the note, and the mortgage on an assignment for value, can qualify as a bona fide purchaser so as to avoid the defense of usury.
1. The order form stated that the order was subject to acceptance by Clinton; that title to the material would remain in Clinton until it was fully paid for; and that in the event of any default, Clinton could declare the entire remaining unpaid balance immediately due and payable. It specified a 6-year payment plan. Clinton's treasurer testified that it appeared from the order that Warner was to get his own financing since Clinton had no access to 6-year financing, and that as far as Clinton was concerned it was a cash sale. The invoice for the material sent by Clinton showed that it was "charged," which meant it was shipped on open account. Clinton sent Kyrwood Warner a statement showing the balance due September 29, 1960, as $16,542.
The fact that Clinton did not have a 6-year financing plan indicates that there was more to the agreement of the parties than is contained in the order, and the testimony of both the company's treasurer and Kyrwood Warner bears this out. Warner was to finance the building himself if he could, which meant that as between Clinton and Warner the sale would be for cash. If Warner could not get financing, Clinton would arrange it for him. It appears from the record that prior to the time the order was signed it was discovered that Warner would be unable to obtain his own financing. The back of the customer's copy of the order introduced by defendants bears a penciled notation, "Credit Mrs. Gen Stokes." Genevieve Stokes was treasurer of Clinton. Warner testified that he had understood that if he could not obtain his own financing and pay the total amount in cash he would be making a contract which would most likely be sold to a finance company. He also stated that he had no personal contact with Thorp other than sending the payment checks to it after the assignment. As stated, it appears from the record that Clinton arranged for financing in the interval between the receipt and the deposit of the downpayment check. Therefore, it does not appear that the Warners' contention that the order was the complete contract, entitling Clinton to demand full payment, is sound. Had such a demand been made, Warner could properly have claimed that Clinton had assumed the obligation of securing financing and should not have built the building without doing so.
2. The Warners' claim that the conditional sales contract was nothing more than an attempt by Clinton to avoid the usury laws after previously causing the Warners *577 to sign a usurious note may be answered on two grounds:
First, it is contradicted by Kyrwood Warner's own statement that the contract and note were not signed at the same time in order that quarterly payments would coincide with his receipt of payment for each batch of chickens raised in the building. The Warners had encountered difficulty in obtaining birds; although the building was ready by the end of August 1960, they could get none until December of that year. In short, it was to their benefit to defer signing the contract. That the contract and note were to have been signed at the same time is indicated by the fact that the note states that it is secured by a real estate mortgage and installment sales contract "of even date herewith." Had the note and contract been signed at the same time, the facts here, except for the existence of the mortgage, would be identical in all material respects to those in In re Bibbey (D. Minn.), 9 F.2d 944. There it was held that, in the sale of an automobile, the excess in cost specified in the note and installment contract signed by the purchaser over the agreed cash sale price was due to a higher price the dealer could rightfully demand for a time sale and not usurious interest on a loan for the price of the car. The court stated that the fact that immediate sale of the contract to a finance company was contemplated made no difference. 9 F.2d 945.
Second, in numerous cases and many jurisdictions, where, in exchange for goods, a buyer has given a note providing for payment of an amount which, if interest, would exceed the legal rate, the courts have treated the note as evidencing an installment contract providing for a higher time payment. These cases are set out in Annotation, 14 A.L.R. 3d 1065, 1112 to 1118, and an extensive discussion of them here would serve no useful purpose. However, particular attention should be called to Morris Plan Industrial Bank, of Schenectady v. Faulds, 269 A.D. 238, 55 N.Y.S.2d 372, in which the facts are very similar to those in the present case.
3. The Warners contend that the acceptance of the real estate mortgage by Clinton is inconsistent with retention of title in the seller under an installment sales contract and, therefore, that this case should be considered a cash sale with the note a forbearance at a usurious rate, citing Kettwig v. Aero Investment Co., 191 Minn. 500, 254 N.W. 629. In Kettwig, the plaintiff purchased a car on a conditional sales contract. The contract was assigned by the dealer and when plaintiff could not make the payments the defendant purchased the contract from the assignee, lent the plaintiff $50, and took a chattel mortgage on the car as security for the loan. When the plaintiff defaulted on the contract the defendant repossessed the car and sold it without giving the notice required for foreclosure of a chattel mortgage. Plaintiff sued for conversion. The court held that acceptance of the mortgage was inconsistent with retention of title under the contract and that defendant had released, or was estopped from asserting, its title so that it had only a mortgagee's interest in the vehicle.
Kettwig differs from the present case in many respects. For one thing, the mortgage there was to secure an independent loan made subsequent to the sale under the contract. The major distinction, however, is that in Kettwig the property actually sold under the contract was covered by the mortgage, whereas in the present case the property sold was material to construct a building and the mortgage covered the land on which that building was constructed. Accepting a mortgage on the land, to which the Warners clearly had title, is not inconsistent with retention of title to materials used in constructing the building upon that land under a conditional sales contract. The desirability of being able to reach both the land and the building in the event of a default by the purchaser is obvious.
*578 4. Dunn v. Midland Loan Finance Corp., 206 Minn. 550, 289 N.W. 411, held that for a sale of personal property to constitute a loan or forbearance of money, it must be a mere form or device to evade the usury law; and that an owner of property is entitled to set a different price for a credit sale from that set for a cash sale. Therefore, the court concluded, conditional sales contracts were not subject to the usury law (Minn.St. 334.01). The court further stated (206 Minn. 556, 289 N.W. 414):
"The fact that defendant indicated to the dealer the terms on which it would buy the contract between plaintiff and the dealer does not show that the transaction was a loan. The decisions have gone further than we are required to do here. A finance company is not regarded as loaning money to a dealer's customer simply because it furnishes the dealer with schedules of discounts, forms of contract, assignment and other instruments to be executed, and solicits the purchase of such paper from the dealer. Commercial Credit Co. v. Tarwater, 215 Ala. 123, 110 So. 39, 48 A.L.R. 1437; General Motors Acceptance Corp. v. Swain (La. App.) 176 So. 636."
5. The present case was clearly a bona fide sale of goods. By his own testimony, Kyrwood Warner was aware that he was to sign a contract for payment if he could not finance the purchase himself. He was also aware, or at least should have been from the fact that the October 11 note was for more than the September statement indicated his unpaid balance to be, that the price would be higher if he paid on time. Therefore it must be concluded that the usury laws of the state are not applicable to this transaction. As was stated in In re Bibbey, supra, the presence of a prearranged plan to assign the sales contract does not alter this conclusion.
The Warners contend that the exception to the usury laws found in Minn. St. 334.03, whereby the defense is not good against bona fide purchasers for value of usurious negotiable paper prior to maturity, does not apply, in that Heller is not a bona fide purchaser and the paper purchased (the note, mortgage, and contract) was not properly negotiated. Since we have determined that the transaction here was a valid installment sale to which the usury laws do not apply, there is no need to reach this question. Even if Heller is not a bona fide purchaser, since the usury laws are inapplicable, the exception is unnecessary for recovery of the amount owed by defendants.
Affirmed.
NOTES
[1] This figure was computed by what is known as the "six and a half percent add-on" method, which produces a return that would be in excess of 11 percent if figured as simple interest, rather than as a time-price differential. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2383803/ | 656 S.W.2d 650 (1983)
Firman COOK, et al., Appellants,
v.
The CITY OF ADDISON, Texas, Appellee.
No. 05-82-00777-CV.
Court of Appeals of Texas, Dallas.
August 10, 1983.
Rehearing Denied September 8, 1983.
*652 J. Stanley Knight, Dallas, for appellants.
Wayne O. Woodruff, C. Michael Moore, Dallas, for appellee.
Before STOREY, WHITHAM and ROWE, JJ.
WHITHAM, Justice.
Appellants, Firman Cook, Pied Real Grundstueks GMB, Three G Food Corporation and David Albert, as owners of property abutting Belt Line Road in the appellee, City of Addison, Texas, brought this suit to contest paving assessments levied by the city against each of them for the improvement of that road. All parties sought summary judgment. The trial court denied the property owners' motion for summary judgment and rendered a take nothing summary judgment in favor of the city and against the property owners. In nine points of error the property owners contend that:
(1) the city did not have the right to assess the owners of property abutting Belt Line Road;
(2) the amount of the assessment was arbitrary and capricious;
(3) they were not afforded a fair and impartial public hearing on the assessments; and
(4) the paving assessment with respect to Albert was incorrectly calculated.
We find no merit in any of these contentions. Accordingly, we affirm.
The city's voters approved a $13.8 million bond program which included $11.4 million generally for "street improvements." Thereafter, the city issued and sold bonds in the amount of $5.4 million which included approximately $5 million for street improvements. When the bond proceeds were received, they were placed in the city's capital improvements fund. The bonds were not sold for the specific purpose of improving Belt Line Road and the proposition passed by the voters was for "the purpose of making permanent public improvements, to wit: street improvements, including drainage and sidewalk improvements incidental thereto...." Thereafter, the city council passed an ordinance which declared the necessity for the improvement of Belt Line Road, ordered the improvements and directed the city engineer to advertise for bids and to prepare an estimate of the total cost of the improvements and the amount of such costs to be paid by abutting property owners. That ordinance provided for an assessment in accordance with the front foot plan or rule in an amount not to exceed all of the cost of constructing the curbs and gutters and an amount not exceeding nine-tenths (9/10) of the estimated cost of the remainder of the Belt Line Road improvements. Thereafter, the city advertised for bids on the project and prepared the estimate of costs to be paid by abutting property owners. The construction contract was awarded to the H.B. Zachry Company.
Pursuant to Tex.Rev.Civ.Stat.Ann. art. 1105b (Vernon 1963 & Supp.1982-1983), the required public hearings were held. The appellants, Firman Cook, Pied Real Grundstueks GMB and Three G Food Corporation appeared before the city council and took advantage of the opportunity to be heard as afforded by Article 1105b, Section 9. The appellant Albert did not. At those hearings the city council heard presentations from the attorney for these three property owners and testimony from Cook and from a representative from Pied Real Grundstueks GMB. The property owners argued that the proposed improvements to Belt Line Road would not enhance the value of their property in excess of the amount of the assessment. The city council also heard evidence that the enhancement to the property owners' property as a result of the Belt Line Road improvements would be at least the proposed $81.00 per front foot assessment. Following the hearings, the city council passed an ordinance which closed the public hearing, overruled all objections to the assessments and levied an $81.00 per front foot assessment against all property abutting the improved portion of Belt Line Road; finding that such amount did not exceed the special benefits to the abutting properties. Further, the city council provided for certificates of special assessment to evidence the assessments and liens securing *653 same. Construction of improvements began, and pursuant to its contract with Zachry, the city paid Zachry monthly progress payments as work was completed. The funds used for these monthly progress payments were obtained from the capital improvements fund. The improvements relative to the assessment program were satisfactorily completed and accepted by the city; paving certificates were issued to Zachry and reassigned back to the city, the present owner and holder of said certificates. As the Belt Line Road assessments were collected, they were deposited into a special assessments fund. These monies were then credited to the capital improvements fund for the purpose of repaying that fund for monies temporarily advanced to the Belt Line Road project to enable the city to go forward with the project, pay Zachry monthly progress payments and repurchase the paving certificates from Zachry.
The Right to Assess
In their first four points, the property owners contend that the city did not have the right to assess because (1) of the city's use of general street improvement bond proceeds, (2) application of the front foot plan or rule would be arbitrary and capricious and (3) the evidence establishes that the assessments were intended by the city for use in improving other streets in the city.
First, we consider the city's use of general street improvement bonds. The property owners assert that the city cannot assess a portion of the costs against the abutting property owners because the city used general street improvement bond proceeds to pay for the improvements during the construction phase. Relying on four cases, the property owners argue that it was never the intention of the city to pay for any part of the improvements through assessments of abutting property owners because the summary judgment proof conclusively shows that the city intended to pay for the improvements through the proceeds of the sale of bonds and money received from the county. Bush v. City of Denton, 284 S.W. 251 (Tex.Civ.App.Ft. Worth 1926, writ ref'd); Celaya v. City of Brownsville, 203 S.W. 153 (Tex.Civ.App.San Antonio 1918, writ ref'd); Alford v. City of Dallas, 35 S.W. 816 (Tex.Civ.App.1896, no writ); City of Dallas v. Ellison, 30 S.W. 1128 (Tex.Civ. App.1895, writ ref'd). Each of the cases relied on by the property owners was decided prior to the enactment of Article 1105b and none discusses the power of a home rule city to make an assessment of a portion of the costs against the abutting property owners. Accordingly, we conclude that they are not applicable in the present case.
The city asserts that, as a home rule city, it has the power to pay for street improvements with other available municipal funds (the proceeds of street improvement bonds) and then reimburse itself by thereafter imposing paving assessments under Article 1105b. We agree. The city is incorporated as a home rule city under Art. XI, Section 5 of the Constitution of the State of Texas. The city charter expressly authorizes the city council to exercise exclusive domain, control and jurisdiction over the public streets and to provide for street improvements by special assessment as provided in Article 1105b. It is established that:
A home rule city derives its power not from the Legislature but from Article XI, Section 5, of the Texas Constitution. Accepting cities and towns of more than 5,000 population have "full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities, but only for limitations on their powers."
Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 643 (Tex.1975). Thus the city has full power of local self-government, subject to the limitation that its charter and ordinances shall contain nothing inconsistent with the Constitutions of the United States and the State of Texas or with the general laws enacted by the *654 Legislature; however, the intention of the Legislature to impose such limitations must "appear with unmistakable clarity." Id. at 645 (emphasis added). Therefore, the city's actions in connection with the financing, construction and assessment of the Belt Line Road improvements would be within the scope of its lawful powers unless the property owners can establish that the city somehow acted inconsistently with the Constitutions of the United States or the State of Texas or the statutes of the State of Texas. The property owners do not direct this Court to any constitutional or statutory limitations which, with "unmistakable clarity," prohibit the city from financing, constructing and assessing street improvements by the method employed in the present case. To the contrary, Article 1105b, provides in pertinent part as follows:
Sec. 3. That the governing body of any city shall have power to determine the necessity for, and to order, the improvement of any highway, highways, or parts thereof within such city, and to contract for the construction of such improvements in the name of the city, and to provide for the payment of the cost of such improvements by the city, or partly by the city and partly by assessments as hereinafter provided.
* * * * * *
Sec. 6. Subject to the terms hereof, the governing body of any city shall have power by ordinance to assess all the cost of constructing, reconstructing, repairing, and realigning, curbs, gutters, and sidewalks, and not exceeding nine-tenths of the estimated cost of such improvements, exclusive of curbs, gutters, and sidewalks, against property abutting upon the highway or portion thereof ordered to be improved, and against the owners of such property, and to provide the time, terms, and conditions of payment and defaults of such assessments, and to prescribe the rate of interest thereon not to exceed eight (8) per cent per annum. Any assessment against abutting property shall be a first and prior lien thereon from the date improvements are ordered, and shall be a personal liability and charge against the true owners of such property at said date, whether named or not. The governing body shall have power to cause to be issued in the name of the city assignable certificates in evidence of assessments levied declaring the lien upon the property and the liability of the true owner or owners thereof whether correctly named or not and to fix the terms and conditions of such certificates....
* * * * * *
Sec. 9. [T]he governing body shall have power to ... determine the amounts of assessments and all other matters necessary, and by ordinance to close such hearing and levy such assessments before, during or after the construction of such improvements, but no part of any assessment shall be made to mature prior to acceptance by the city of the improvements for which assessment is levied. [emphasis added].
* * * * * *
Sec. 13. In case any assessment shall for any reason whatsoever be held or determined to be invalid or unenforceable, then the governing body of such city is empowered to supply any deficiency in proceedings with reference thereto and correct any mistake or irregularity in connection therewith, and at any time to make and levy reassessments after notice and hearing as nearly as possible in the manner herein provided for original assessments....
We conclude that Article 1105b does not contain any limitations which, with "unmistakable clarity," prohibit the city from paying for improvements with other available city funds and still recovering a portion of the costs of the improvements by assessment. To the contrary, Article 1105b specifically contemplates that the city has such power by its very language. Section 9 prohibits the city from collecting any assessments until after the project is completed and accepted. Under the property owners' restrictive theory, a city would have to violate this provision of Article 1105b in order to pay the paving contractor directly with *655 assessment proceeds during the course of construction. Further, Section 9 clearly contemplates that the levy of assessments may come "before, during or after" the actual construction of the improvements. Section 3 evidences the legislature's grant of flexibility to cities to contract for street improvements and to use city monies to pay the contract and also conduct an assessment program. Finally, Section 13 allows the city to make and levy reassessments "[i]n case any assessment shall for any reason whatsoever be held or determined to be invalid or unenforceable...." Certainly, when a city seeks to reassess the abutting property owners as a result of some irregularity, such as improper notice, the improvements will have already been completed and paid for with other available city funds. Such reassessment procedures are necessarily designed to allow a city to recoup a portion of cost of the improvements after they have been completed and paid for with other available funds. If a city were forced to always pay the contractor directly and immediately with assessment proceeds or forfeit its right to assess, then many of the provisions of Article 1105b would be entirely meaningless.
We find Vogel v. Central Texas Securities Corp., 62 S.W.2d 243 (Tex.Civ.App. Austin 1933, writ ref'd), instructive. In Vogel, Central Texas brought an action against Vogel on two Article 1105b paving certificates which had been issued by the City of Rockdale to its paving contractor, which certificates were assigned back to the city and then assigned by the city to Central Texas. Vogel refused to execute a mechanic's lien on his abutting homestead property to secure the cost of the paving and the contractor notified the city that because of such refusal, he would skip the portion of the street abutting Vogel's property. The city, desiring the street to be completely paved, agreed that it would, upon completion of the work, issue paving certificates in compliance with Article 1105b, immediately have the certificates reassigned to the city, pay the contractor for the paving with other available municipal funds and then proceed against Vogel to collect on the certificates so as to reimburse the city. The paving was done on this basis and the city thereafter assigned its rights against Vogel to Central Texas. The thrust of Vogel's argument, like that of the property owners in the present case, was that the city did not have the power to pay the contractor for the paving and still levy and collect a paving assessment from abutting property owners. Id. at 245. In affirming the trial court's holding in favor of the paving certificate holder, the court held as follows:
We do not regard the agreement of the city to pay for the paving when the contractor completed same under his contract and assigned the assessment certificates to be issued to it, the city to proceed against the abutting owner of the homestead property personally for the assessments legally made against him, as being transactions ultra vires of the city's corporate powers.... The certificates were legal and negotiable in the hands of the contractor, and no good reason exists under the facts above stated why the city, in order to secure the paving of its entire street without skips, could not agree to pay the contractor for his work upon his assigning the certificates to it, the city to proceed against appellant personally to collect the legal assessments against him for his part of the street improvements abutting on and benefiting his property. Nor do we regard the purchase of the paving certificates which appellant personally owed under the facts stated, by the city, or its subsequent assignment of them to appellee, as being transactions ultra vires of its corporate powers. [emphasis added].
Id. at 245.
As in Vogel, the contractor in the present case had reassigned the paving certificates to the city, the present holder and owner of such certificates. Like the City of Rockdale in Vogel, the city in the present case paid for the construction with other available city funds during the course of construction. We read Vogel as authority that the city's use of other funds to make *656 payments to its contractor for construction work in progress and then to repurchase the certificates and seek to collect the assessments from the property owners is not ultra vires of its corporate powers. Accordingly, we disagree with the property owners' argument under their first four points of error that the city cannot use other available municipal funds to pay for street improvements during the course of construction of those improvements and, thereafter, lawfully levy and collect paving assessments to recover a portion of the cost of those same improvements. To the contrary, we hold that a home rule city which uses general street improvement bond proceeds to pay its street improvement contracts has the right to assess abutting property owners under Article 1105b.
Second, we consider application of the front foot plan or rule. The property owners assert that the city cannot assess a portion of the costs against abutting property owners because of certain tract dimension and present real estate use considerations. The property owners argue that no adjustment was made by the city "for the size, shape or square footage of the lot, or for its present development, whether it be in use for commercial, industrial or retail use, or whether the property was vacant" and that, therefore, the assessments were arbitrary and capricious. In effect, the property owners are contending that the assessments were arbitrary and capricious because of application of the front foot plan or rule as permitted by Article 1105b, Section 7:
The part of the cost of improvements on each portion of highway ordered improved which may be assessed against abutting property and owners thereof shall be apportioned among the parcels of abutting property and owners thereof, in accordance with the Front Foot Plan or Rule provided that if the application of this rule would, in the opinion of the Governing Body, in particular cases, result in injustice or inequality, it shall be the duty of said Body to apportion and assess said costs in such proportion as it may deem just and equitable, having in view the special benefits in enhanced value to be received by such parcels of property and owners thereof, the equities of such owners, and the adjustment of such apportionment so as to produce a substantial equality of benefits received and burdens imposed. [Emphasis added].
The property owners, however, do not tell us how application of the front foot plan or rule would result in "injustice or inequality." It is true that at the hearing some of the appellant property owners pointed to tract dimension and present real estate use considerations they perceived as important, but nowhere did they proffer the city council evidence upon which the city council could determine that in their particular cases application of the front foot plan or rule would result in "injustice or inequality." To the extent that City of Houston v. Alnoa G. Corp., 638 S.W.2d 515 (Tex.App.Houston [1st Dist.] 1982, writ ref'd n.r.e.), may be read to hold that an assessment was arbitrary and capricious solely for the reason that there was property owner expert testimony before the city council "that the appellee's lots were irregular in width, depth and shape, and that the application of the front foot rule would result in disproportionate assessment of costs on a square foot basis," then we decline to follow that holding. To hold an assessment under the front foot plan or rule arbitrary solely on that evidence, without more, would vitiate use of the front foot plan or rule in every circumstance as it would be virtually impossible for the situation to occur where all tracts to be assessed were of identical dimensions. Therefore, we conclude that a mere showing of the existence of a difference in the size, shape or square footage of tracts abutting a street is insufficient to establish that application of the front foot plan or rule would result in "injustice or inequality." Likewise, to hold an assessment under the front foot plan or rule arbitrary solely on evidence of a tract's "present development, whether it be in use for commercial, industrial or retail use, or whether the property was vacant," without more, would also vitiate use of the *657 front foot plan or rule. The determination of special benefits in enhanced value as used in Article 1105b, Section 9, speaks to enhanced value resulting from improvements alone without limitations imposed by present use choices made by an individual owner. For illustration, under the property owners' theory an owner could deliberately cause his property to remain vacant, point to that fact at the hearing before the city council and defeat assessment. A present use, or lack of use, of property cannot negate the fact that street improvements might appreciate the value of the property regardless of the present use, if any. Accordingly, we conclude that a mere showing of the present development of a tract, whether its use be commercial, industrial or retail or whether the property is vacant is insufficient to establish that application of the front foot plan or rule would result in "injustice or inequality". We leave the question of what must be shown to establish "injustice and inequality" to another case and time. It follows, therefore, and we so hold, that in the present case the assessments were not arbitrary and capricious because no adjustment was made because of the tract dimension and present real estate use considerations relied on by the property owners.
Third, we consider the city's alleged intent to use the assessments for improving other streets. The property owners contend that even if a city may spend proceeds from the sale of the bonds and also assess abutting property owners, the city may not do so in the present case because the evidence establishes that the assessments to be collected from them were intended by the city for use in improving other streets in the city, not Belt Line Road. In support of this contention the property owners point to the contents of (1) a memorandum from the city manager to members of the mayor's advisory committee, (2) a memorandum from the city manager to the mayor and members of the city council, (3) a memorandum from the city manager to the city's director of finance and (4) a memorandum from the city manager to the city engineer.
For the purposes of this opinion we assume, but do not decide, that these memoranda express the city manager's intent to use assessment funds to improve other streets, not Belt Line Road. We conclude, however, that these memoranda are not binding on the city in the present case. Article 1105b, Section 9, contains language directed to this very situation, i.e., "no words or acts of any officer or employee of the city, or member of any governing body shown in its written proceedings and records shall in any way affect the force and effect of the provisions of this Act." Moreover, the only way a political subdivision of the state can act, practically as well as legally, is by and through its governing body. See Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1112 (5th Cir.1980). Statements by individual members of a council or board are not binding on a governmental body which may act only in its official capacity. City of Farmers Branch v. Hawnco, Inc., 435 S.W.2d 288, 292 (Tex.Civ.App.Dallas 1968, writ ref'd n.r. e.). See also Austin Neighborhoods Council v. Board of Adjustment of Austin, 644 S.W.2d 560, 564 (Tex.App.Austin 1982, no writ); Stirman v. City of Tyler, 443 S.W.2d 354, 358 (Tex.Civ.App.Tyler 1969, writ ref'd n.r.e.); Driggs v. City of Denison, 420 S.W.2d 446, 449 (Tex.Civ.App.Dallas 1967, no writ). We conclude, therefore, that expressions of intent, if any, contained in the memoranda from the city manager and relied on by the property owners are not binding on the city. Accordingly, we hold that the city manager's memoranda do not affect the city's rights under Article 1105b to assess the property owners in the present case.
Whether the Amount of the Assessments Was Arbitrary and Capricious
In their fifth and sixth points, the property owners assert that there was no legally sufficient evidence upon which the city council could base assessments against them. The property owners ground this assertion on their contention that there was no evidence before the city council upon which it could determine the amount of *658 special benefits received by property owners and their properties as provided in Article 1105b. Without such evidence, the property owners argue that the assessments are arbitrary and capricious.
The amount of an assessment may not be based upon an arbitrary determination. City of Houston v. Blackbird, 394 S.W.2d 159 (Tex.1965). Under Article 1105b, Section 9, no authority is given a property owner to contest in court the determination of the amount of special benefits.
It will be noted also that authority is expressly conferred on owners to contest at the hearing both "the amounts of the proposed assessments" and "the special benefits to the abutting property and owners thereof"; but that on appeal, whereas authority is expressly given to contest assessments "on account of the amount thereof," no authority is expressly given to contest the determination of the amount of special benefits. The failure of the Legislature to provide expressly that abutting property owners should have a right on appeal to contest the amount of special benefits as determined by the governing body of a city is both glaring and significant, particularly since the special benefits thus determined establish a ceiling for assessments. The Legislature must have intended that a finding of special benefits to abutting property and a determination of the amount thereof should be entrusted to the discretion and judgment of the governing body of a city, else these matters would have been made subject to contest on appeal.
Id. at 162.
Thus, on appeal to the courts, dissatisfied property owners are not entitled to a trial de novo of issues relating to benefits accruing from improvements, and acts of a governing body of a city in finding benefits to a property and in determining the amount of the benefits under Article 1105b can be set aside and annulled only because they are arbitrary or are the result of fraud. Id. at 160, 163. In the present case there is no suggestion of fraud. We turn then to a consideration of whether the city council acted arbitrarily. That is a question of law, not a question of fact. Id. at 163.
The present case involves commercial properties located in one of the fastest growing areas of commercial development in this state. Prior to the improvements, Belt Line was an inadequate four-lane road composed of asphalt, the surface of which was in a bad state of repair. It did have a middle turn lane that was available to the people traveling east or west but, on occasion, both sides tried to use it at the same time. Also, there was a significant drop in the roadway to adjoining properties. In sum, Belt Line Road was not only a safety hazard to the traveling public, but an impediment to the business of the numerous commercial firms along Belt Line as well as an impediment to further commercial development. As a result of the improvements which are being assessed, Belt Line Road is now a six-lane divided thoroughfare with protected left-hand turn lanes at all intersections plus a number of other locations. Further, the road will be properly lighted and there will be storm drainage to carry off water that had, in some places, been destroying the roadway.
In the present case the property owners were assessed $81.00 per front foot which represented twenty-three percent (23%) of the city's share of the cost of the improvements.[1] The $81.00 per front foot was determined by the city to be the cost of *659 constructing eighteen and one-half (18½) feet of new paving in a new street or the present cost of constructing one-half of a thirty-seven (37) foot street. The city council heard testimony from Mr. Darryl Snadden, a developer who buys and sells real estate and who has owned property along Belt Line Road since 1973, that all properties along Belt Line Road would be increased in value by at least $81.00 per front foot. Thus the city council heard evidence that each of the property owners' properties would be increased in value by at least $81.00 per front foot. Cf. Garcia v. City of Alice, 505 S.W.2d 611 (Tex.Civ.App.San Antonio 1974, no writ), where the court determined that the implied finding that appellant's property was benefited to the extent of $6.27 a front foot was arbitrary when there was absolutely no evidence that the property would be enhanced in value as a result of the improvements in an amount equal to $6.27 per front foot. Under Article 1105b, Section 9, the city was free to credit Mr. Snadden and make a finding on conflicting evidence. Thus we conclude that there was sufficient evidence before the city council upon which it could determine the amount of special benefits received by the property owners and their properties as provided in Article 1105b. Therefore, we conclude further that the implied finding by the city council that the property owners' property was benefited at least to the extent and in the amount of $81.00 per front foot was not arbitrary. It follows, and we so hold, that the assessments were not arbitrary and capricious.
Whether the Property Owners Were Afforded a Fair and Impartial Public Hearing on the Assessments
Article 1105b, Section 9, provides that no assessment shall be made against any abutting property or its owners until after notice and opportunity for hearing. Article 1105b, Section 9, describes that hearing:
Such hearing shall be by and before the governing body of such city and all owning any such abutting property, or any interest therein, and all owning any such railway, street railway or interurban, or any interest therein, shall have the right, at such hearing, to be heard on any matter as to which hearing is a constitutional prerequisite to the validity of any assessment authorized by this Act, and to contest the amounts of the proposed assessments, the lien and liability thereof, the special benefits to the abutting property and owners thereof by means of the improvements for which assessments are to be levied, the accuracy, sufficiency, regularity and validity of the proceedings and contract in connection with such improvements and proposed assessments, ....
In their seventh and eighth points, the property owners contend that "[a] reading of the transcripts of the hearings ... leads a reasonable person to believe that the city was simply `going through the motions' of a hearing without any intention of making any adjustment or correcting any inequity to any property owner." As evidence of "going through the motions," the property owners point to the failure of the city to employ real estate appraisers, or other qualified persons, to examine each separate tract to determine the amount of special benefits, if any, to such tracts, citing City of Tyler v. Wynne, 434 S.W.2d 938 (Tex.Civ. App.Tyler 1968, writ ref'd n.r.e.). That case, however, does not, as the property owners contend, require a city to employ appraisers. In City of Tyler the court only commented that the city, in an effort to be fair, had employed two appraisers. In City of Tyler the validity of the special benefit determination was upheld because there was evidence before the city council (like the testimony of Mr. Snadden) that "the property would be enhanced in value at least to the amount of the assessment." Id. at 940. As further evidence of "going through the motions," the property owners point to several remarks or rulings by the mayor and several of the councilmen. We have studied the remarks and rulings complained of and conclude that they fail to establish that the city council was simply "going through the motions" of conducting the required public hearing. Moreover, the property owners fail to tell us how any of *660 these remarks or rulings in any way prevented them from being heard on any matter permitted by Article 1105b or from contesting any matter permitted by Article 1105b, and from our reading of the remarks and rulings complained of, we are unable to find how any remark or ruling did so. We conclude, therefore, that the property owners were afforded a fair and impartial public hearing on their assessments.
The Error in the Calculation of Albert's Assessment
Albert was assessed for 190.84 front feet. The stipulated plat shows Albert's property to front 180.84 feet on Belt Line Road. The city, however, "squared off" a "corner clip" on the southwest corner of Albert's property resulting in an additional ten (10) feet of frontage. In his ninth point, Albert contends that his assessment was incorrectly calculated as a matter of law because he was assessed for a portion of the "corner clip" and that, therefore, the assessment is mathematically incorrect by ten (10) feet in the amount of $810.00. The city contends that it was entitled to "square off" and assess for a portion of the "corner clip". In view of our disposition of this point, we do not reach the merits of the city's argument on this issue.
In his brief Albert tells us that he "was not in attendance at the hearings, [the Article 1105b, Section 9, public hearings before the city council on the assessments] and [that] the error in his frontage was not brought to the attention of the Council." Thus in addressing Albert's contention, we must first determine whether Albert is entitled to relief on appeal to the district court from the assessment made by the city council when he did not raise the incorrect calculation before the city council. We conclude that in the present case Albert is not entitled to the relief sought on appeal to the district court. Article 1105b, Section 9, provides in pertinent part:
Anyone owning or claiming any property assessed, or any interest therein, or any railway, street railway, or interurban assessed, or any interest therein, who shall desire to contest any such assessment on account of the amount thereof, or any inaccuracy, irregularity, invalidity, or insufficiency of the proceedings or contract with reference thereto, or with reference to such improvements, or on account of any matter or thing not in the discretion of the governing body, shall have the right to appeal therefrom and from such hearing by instituting suit for that purpose in any court having jurisdiction, within fifteen (15) days from the time such assessment is levied, and anyone who shall fail to institute such suit within such time shall be held to have waived every matter which might have been taken advantage of at such hearing, and shall be barred and estopped from in any manner contesting or questioning such assessment, the amount, accuracy, validity, regularity, and sufficiency thereof, and of the proceedings and contract with reference thereto and with reference to such improvement for or on account of any matter whatsoever. And the only defense to any such assessment in any suit to enforce the same shall be that the notice of hearing was not mailed as required or was not published or did not contain the substance of one or more of the requisites therefor herein prescribed, or that the assessments exceed the amount of the estimate, and no words or acts of any officer or employee of the city, or member of any governing body shown in its written proceedings and records shall in any way affect the force and effect of the provisions of this Act. (Emphasis ours)
We interpret the phrase "every matter which might have been taken advantage of at such hearing" in language providing for waiver by failing to institute suit within fifteen (15) days from the time assessment is levied to mean that if a matter is one that could have been raised before the city council at the hearing provided by Article 1105b, Section 9, then the matter cannot be raised for the first time on appeal to the district court and that failure to so raise the matter constitutes a waiver of the matter. *661 Were we to hold that under Article 1105b, Section 9, a property owner could raise any matter for the first time on appeal to the court having jurisdiction, then carried to its logical conclusion such a holding would permit a dissatisfied property owner to ignore the hearing before the city council and on appeal within fifteen (15) days from the time assessment is levied to the court having jurisdiction there raise for the first time any and all matters pertaining to this assessment. We do not believe that the legislature intended any such result. It is appropriate that the city council be given the first opportunity to correct alleged mistakes or errors in calculating the amount of an assessment. Indeed, in the present case appellant Cook asserted at the hearing before the city council that he should not be assessed for a "corner clip" on his property and at that hearing the assessment for a portion of the "corner clip" was deleted and a correction made in Cook's assessment. We conclude that the alleged incorrect calculation is a matter which Albert could have raised before the city council at the hearing provided for by Article 1105b, Section 9. Accordingly, we hold that because Albert did not raise the alleged incorrect calculation of his assessment before the city council at the Article 1105b, Section 9, public hearings he waived his right to contest in the district court the alleged incorrectly calculated assessment resulting from the "squaring off" of a "corner clip" on his property.[2]
Affirmed.
NOTES
[1] Under Article 1105b, Section 6, the city may "assess all the cost of constructing, reconstructing, repairing, and realigning, curbs, gutters, and sidewalks, and not exceeding ninetenths of the estimated cost of such improvements, exclusive of curbs, gutters, and sidewalks...." (Emphasis ours). We do not agree with the city that they could have assessed approximately $140.00 per front foot because of the statutory maximum of ninety percent (90%). We reach this conclusion because the city did not establish special benefits of approximately $140.00 per front foot as would be required under Article 1105b, Section 9.
[2] Therefore, had we sustained any of the first eight points of error and reversed, we would still affirm as to Albert because he failed to appear before the city council and take advantage of the opportunity to be heard as afforded by Article 1105b, Section 9. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1828982/ | 986 So. 2d 612 (2008)
DAVIS
v.
STATE.
No. 3D08-1593.
District Court of Appeal of Florida, Third District.
June 30, 2008.
Decision without published opinion. Cert.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2337118/ | 40 S.W.3d 118 (2000)
Stephanie BRECKENRIDGE, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-99-00858-CR.
Court of Appeals of Texas, San Antonio.
October 25, 2000.
Rehearing Overruled December 28, 2000.
Discretionary Review Refused June 6, 2001.
*120 Mark Stevens, San Antonio, for Appellant.
Fred Hernandez, Assistant District, Attorney, Del Rio, for Appellee.
Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, SARAH B. DUNCAN, Justice.
OPINION
TOM RICKHOFF, Justice.
Stephanie Breckenridge appeals a judgment sentencing her to three years imprisonment based on a jury's verdict finding her guilty of four counts of indecency with a child by exposure.[1] Breckenridge asserts sixteen points of error, complaining: (1) the trial court erred in defining "genitalia" in the jury charge; (2) a fatal variance existed between the indictment and *121 the jury charge; (3) the trial court erred in its limiting instruction relating to extraneous misconduct; and (4) the evidence is legally and factually insufficient to support the jury's verdict.
FACTUAL BACKGROUND
Breckenridge was charged with five counts of indecency with a child by exposure. Two of the counts relate to conduct alleged to have occurred on May 28, 1998, involving two victims, N.L. and M.T.[2] The remaining three counts relate to conduct alleged to have occurred on June 3, 1998, involving three victims, M.T., E.A., and A.L. The jury found Breckenridge guilty of both counts alleged to have occurred on May 28, 1998, and two of the counts alleged to have occurred on June 3, 1998. The jury found Breckenridge not guilty of the count alleged to have occurred on June 3, 1998, in which M.T. was the alleged victim.
N.L. and M.T. both testified regarding the events that occurred on May 28, 1998. Both boys knew Breckenridge from church because she was their Sunday school teacher, and both boys were friends with Breckenridge's stepson, T.B. On May 28, 1998, N.L. went over to T.B.'s house, and M.T. arrived later. Either Breckenridge or Breckenridge and T.B. brought up the idea of going skinny-dipping, and everyone agreed to the suggestion. N.L. stated that he saw Breckenridge completely nude, including her, "breasts, stomach, back, butt, legs, feet and pubic hair," but he "didn't see her vagina." M.T. stated that he saw Breckenridge's breasts and pubic area. Both boys stated Breckenridge never attempted to hide her nudity. Breckenridge told them that she was afraid of her husband finding out because they would all be in trouble. Breckenridge's husband called while they were in the pool, and Breckenridge got out of the pool. Breckenridge told the boys to hide behind the house, which they did until Breckenridge's husband left. After Breckenridge's husband left, Breckenridge rented two movies containing sexual content, which the three boys watched with Breckenridge while drinking wine coolers supplied by Breckenridge. T.B. and M.T. fell asleep on the floor, and N.L. testified that he rode his motorcycle home. During cross-examination, defense counsel questioned the boys about details provided during their testimony that were not contained in their statements to police and minor inconsistencies between their testimony and their statements.
T.B. also testified about the events of May 28, 1998. T.B. stated that no one suggested skinny-dipping, but after the boys and Breckenridge got into the pool, someone dared everyone to take their suits off. T.B. did not remember his father calling, and T.B. stated that after they left the pool, they went inside to watch television but no one was drinking.
N.L., M.T., E.A., A.L., and J.R. all testified regarding the events that occurred on June 3, 1998. Each of these boys knew Breckenridge because she was their Sunday school teacher and because they were friends with her stepson T.B. After getting physicals for camp at the church, everyone went to Breckenridge's house for a party. Orders were taken for alcoholic beverages, and Breckenridge went to purchase the drinks. After awhile, everyone started dancing. T.B. then told Breckenridge to do her "stool" dance. Breckenridge put a *122 stool in the middle of room, and began dancing provocatively while removing her clothes. T.B. then brought ropes to tie up Breckenridge. At that time, she had removed her top, but not her pants. After tying her up, the boys removed Breckenridge's pants, but not her underwear. The boys let Breckenridge up when she got angry at T.B. for taking pictures. Later, A.L., M.T. and E.A. were "making out" with Breckenridge on the trampoline in the back yard. Breckenridge was groaning and making noises like she was enjoying what was happening. M.T. went inside, but E.A. and A.L. remained outside with Breckenridge on the trampoline. At some point, Breckenridge's underwear went down to her ankles, and E.A. observed A.L. "kissing her crotch area." E.A. stated that he just saw pubic hair, but he "didn't see her vagina." A.L. stated that the last thing he remembered was Breckenridge's pants going down, but he did not remember anything else because he was too intoxicated. A.L. stated that he did not see Breckenridge's genitals. During cross-examination, defense counsel questioned the boys about details provided during their testimony that were not contained in their statements to police and minor inconsistencies between their testimony and their statements.
T.B. also testified about the events of June 3, 1998. He stated that J.R., A.L., N.L., M.T., and E.A. were at his house for a party after the physicals. Breckenridge purchased alcohol for the boys. T.B. testified that he stayed in his room for a long period of time. T.B. stated that he took a picture of Breckenridge when the other boys had pinned her down. T.B. testified that at one point he saw Breckenridge dancing on a stool, but he did not tell her to do that. T.B. stated that Breckenridge never took her clothes off. T.B. testified that he went outside for a short while, then came inside and went to sleep. T.B. stated that Breckenridge remained outside, and he did not know what she did after he came back inside.
JURY CHARGE
In her first five points of error, Breckenridge complains that the trial court erroneously submitted the following definition of genitals or genitalia in the jury charge:
The genitals or genitalia of a female consist of an internal group and an external group. The internal group is situated within the pelvis, and consists of the ovaries, uterine tubes, uterus, and vagina. The external group is situated below and in front of the pubic arch, and consists of the mons pubis (the rounded mound in front of the joinder of the public bones that becomes covered with hair at the time of puberty), the labia majora and minora (longitudinal folds of skin at the opening of the female orifice) and certain glands situated within the vestibule of the vagina.
Breckenridge contends that the trial court should not have included the definition in the jury charge because: (1) the definition singled out testimony and commented on the weight of the evidence; (2) the definition did not distinctly apply the law to the facts of the case; (3) the definition amounted to a constructive amendment of the indictment in violation of the United States and Texas Constitutions; and (4) the definition was without support in the law or evidence. The State responds that the definition was proper and its submission was not an abuse of the trial court's discretion.
A trial court has broad discretion in submitting proper definitions to the jury. See Roise v. State, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref'd); Macias v. State, 959 S.W.2d 332, 336 (Tex. App.Houston [14th Dist.] 1997, pet. *123 ref'd), cert. denied, (U.S. Oct. 2, 2000)(No. 00-5278). A trial court abuses its discretion if it acts without reference to guiding principles or rules. See Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993); State v. Cabello, 981 S.W.2d 444, 445 (Tex. App.San Antonio 1998, no pet.).
A trial court must define any legal phrase that a jury must necessarily use in properly resolving the issues. See Macias, 959 S.W.2d at 336. Generally, terms not legislatively defined are to be understood as ordinary usage allows, and jurors may give them any meaning which is acceptable in common parlance. Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim.App.2000). There are exceptions, however, to this general rule. Id. at 772. Justice is better served, and more consistently applied, if jurors are provided a precise, uniform definition to guide their determination regarding the meaning of certain words and phrases. Id. For example, justice is better served by defining words and phrases which have a known and established legal meaning, or which have acquired a peculiar and appropriate meaning in the law, as where the words have a well-known common law meaning. Id.
The terms genitals and genitalia have acquired an established legal or common law meaning. See, e.g., Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App. 1977); Carmell v. State, 963 S.W.2d 833, 837 (Tex.App.-Fort Worth 1998, pet. ref'd), rev'd on other grounds, 529 U.S. 513, 120 S. Ct. 1620, 146 L. Ed. 2d 577 (2000) (reversed on ex post facto grounds because victim's testimony was not corroborated); Aylor v. State, 727 S.W.2d 727, 729 (Tex. App.Austin 1987, pet. ref'd); Lujan v. State, 626 S.W.2d 854, 858-59 (Tex.App.-San Antonio 1981, pet. ref'd).
In Clark, the appellant argued that the definition of "sexual contact" included only the anus and genitals, and did not include the urinary opening. Clark, 558 S.W.2d at 889. In addition, the appellant argued that a female's "genitals" included only the vagina and no other part of the genital area. Id. Therefore, the appellant contended that the testimony that he touched the victim's "front butt," which was defined as that "area between your legs where you pea [sic] at," was insufficient to sustain his conviction. Id. The Texas Court of Criminal Appeals rejected the argument, asserting the statute prohibited the touching of any part of the genitals, which includes more than just the vagina. Id. The Court stated, "the definition of `genitals' includes the vulva which immediately surrounds the vagina." Id.
In Carmell, the appellant asserted that the evidence was legally insufficient to support his sexual assault conviction because the victim's testimony that the defendant touched her "genital area" with his penis was not specific enough to prove that his penis contacted the victim's sexual organ. See Carmell, 963 S.W.2d at 836-37. The appellant conceded that if the victim had testified that his penis touched her "genitals" or "genitalia," the evidence would be sufficient. See id. The court rejected the appellant's argument, stating genitals include "the vulva which immediately surrounds the vagina." Id. (quoting Clark, 558 S.W.2d at 889). The court reasoned, "If K.M. had testified, as appellant desired, that appellant contacted her `genitals,' that would have encompassed the `genital area,' i.e., the area surrounding the genitals. Further, it would be untenable to find that the genital area does not include the genitals." Id.
In Lujan, the appellant argued that the testimony of the victim was insufficient to sustain the allegation that he engaged in sexual contact by touching the victim's vagina. See Lujan, 626 S.W.2d at 858. This *124 court noted that the Texas Court of Criminal Appeals' holding that the definition of "genitals" includes the vulva which immediately surrounds the vagina. See id. at 859. This court then noted that "vulva" is defined as "the external parts of the female genital organs, including the labia majora, the labia minora, mons veneris, clitoris, perineum, and the vestibule or entrance of the vagina." Id. (citing the Simplified Medical Dictionary for Lawyers (B. Maloy 2d ed.1951) 571 and Gray's Anatomy (C.M. Goss 25th ed.1951) 1317). This court further noted that "vagina" has been defined as "the genital canal in the female, extending from the uterus to the vulva." Id. (citing Stedman's Medical Dictionary (3d unabridged Lawyer's Ed.1972) 1367). Although we held that the term vagina was a more particularized term than the term "genitals," we found the evidence sufficient to sustain the conviction. See id.
Similarly, in Aylor, the court noted that "genitals" includes more than the "vagina," it includes "the vulva or tissue" immediately surrounding the vagina. See Aylor, 727 S.W.2d at 729. In Bryant v. State, 685 S.W.2d 472, 474 (Tex.App.-Fort Worth 1985, pet. ref'd), the court noted that "vagina" has been defined as "the canal in the female extending from the uterus to the external parts of the female genital organs." (citing BLAKISTON'S GOULD MEDICAL DICTIONARY 1439 (4th ed.1979)).
In this case, justice was better served by including the established legal and well-known common law meaning of the term "genitals" or "genitalia." See Medford, 13 S.W.3d at 772. The testimony of the boys drew a distinction between vagina and pubic hair or pubic area that could have confused the jurors, and the jurors were required to understand the legal meaning of the term genitals to properly resolve the issue. Therefore, the trial court did not abuse its discretion in including the definition in the jury charge.
Even assuming the definition was improper, to warrant reversal, the appellant must show at least "some harm" from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). The burden of proof is on the defendant alleging charge error to show actual harm, not mere theoretical or potential harm. See Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). In determining the existence of some harm under Almanza, we examine any relevant information on the record, including the nature of the error, the entire charge, the state of the evidence, and the arguments of counsel. See Johnson v. State, 981 S.W.2d 759, 762 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd).
Appellant complains the trial court's definition equates pubic hair with genitalia and authorizes the jury to convict based on exposure of pubic hair. The trial court's definition did not state pubic hair was genitalia, only that pubic hair covered parts of the external genitalia. In closing argument, appellant presented this theory to the jury by arguing the witnesses in the case saw only pubic hair. The jury rejected this argument, presumably inferring the defendant exposed her genitals based on the testimony that the defendant removed all of her clothes and the testimony stating the witnesses saw pubic hair. Whether or not the witnesses could actually see the genitals due to the defendant's pubic hair or due to a failure to inspect closely enough is not relevant to proving exposure. Conviction for exposure does not require the victim or witness to actually see the genitals, See Uribe v. State, 7 S.W.3d 294, 297 (Tex.App.-Austin 1999, pet. ref'd); the crime is exposing, unmasking, or uncovering the genitals. See Balfour v. State, 993 S.W.2d 765, 769 (Tex. *125 App.Austin 1999, pet. filed). The charges in this case concern not what the victims saw, but what the defendant exposed. The defendant was able to argue the theory that only pubic hair was exposed, and the jury rejected the theory. Because there is no abuse of discretion in the jury charge, and in any event, no showing of harm, we overrule Breckenridge's first five points of error.
VARIANCE BETWEEN INDICTMENT AND CHARGE
In her sixth point of error, Breckenridge contends that there was a fatal variance between the indictment, which alleged that Breckenridge exposed her "genitals," and the court's charge, which authorized her conviction if the jury found that she exposed "any part of her genitals." A variance between the charging instrument and proof at trial is fatal only if it operated to the defendant's surprise or prejudiced her rights. See Rojas v. State, 986 S.W.2d 241, 246 (Tex.Crim. App.1998). Texas courts treat a specific area of the genitals synonymously with the genitals as a whole. See Wilson v. State, 9 S.W.3d 852, 855 (Tex.App.-Austin 2000, no pet.); Claycomb v. State, 988 S.W.2d 922, 925 (Tex.App.-Texarkana 1999, pet ref'd). Therefore, Breckenridge could not have been surprised or prejudiced. Breckenridge's sixth point of error is overruled.
LIMITING INSTRUCTION
In her seventh and eighth points of error, Breckenridge complains about the trial court's limiting instructions. The limiting instructions related to the testimony by N.L. concerning other instances in which Breckenridge may have exposed herself to him.
N.L. testified that in April of 1998, Breckenridge showed him a diary describing her sexual encounters with other people. N.L. stated that Breckenridge showed him the diary because she wanted to have sex with him, and after she showed him the diary, she started "hitting on him." N.L. stated the Breckenridge was wearing shorts and a shirt, but no underwear or bra. N.L. stated that Breckenridge exposed her "breasts, back, all that, her upper body, stomach, her legs, all that, but [he] didn't see her vagina. [He] just saw pubic hair."
In response to defense counsel's request, the trial court instructed the jury as follows:
THE COURT: Yes. Members of the jury, you are to consider the evidence just offered, if you give it any consideration at all, as you know that's in your discretion what evidence that you give validity and credibility to, but you are to consider it only for the purpose for which it is offered, that is, going to show the state of mind, if any, of the accused, Stephanie Breckenridge, at the time of the incidents, if any incidents did in fact occur, but the incidents that are alleged in the indictment. You are to consider it for that purpose only as to the state of mind of the defendant in connection with the charges against her in the indictment. Continue on.
The trial court then overruled defense counsel's request for "an instruction as to the standard of proof, beyond a reasonable doubt."
N.L. then continued testifying regarding another incident. On another occasion, N.L. testified that he was giving Breckenridge a massage, when T.B. brought a dildo into the room and used it to massage around Breckenridge's vagina. N.L. stated that Breckenridge was not wearing any clothes. N.L. further testified that T.B. got a cold bucket of ice and water, blindfolded Breckenridge, and dripped ice around her body.
*126 The trial court interrupted the testimony to remind the jury as follows:
THE COURT: Again, members of the jury, the only weight, consideration you can give to the evidence just offered by the witness is solely limited to evidence regarding state of mind, if any, of the defendant at the time of the offenses that are alleged in the indictment, and you are not to consider that evidence for any other purpose other than going to show, if it does, the state of mind of the defendant in connection with the charges against her. The State has not charged anything like this against the accused as a criminal offense, and therefore you are strictly limited, as I have said, and as I will say in the closing instruction to you, the charge to you, to consider it for that purpose alone if you give it any consideration whatsoever. Go ahead.
Finally, N.L. testified regarding the events that occurred after M.T. and T.B. fell asleep on May 28, 1998. N.L. testified that he and Breckenridge drove to a lake about midnight. Breckenridge had on shorts and a top, but no bra or underwear. They laid in the back of Breckenridge's van. N.L. started massaging Breckenridge, who was not wearing any clothes. Breckenridge offered N.L. oral sex. N.L. declined. After about an hour, Breckenridge got dressed, they returned to her house, and N.L. went home.
The trial court again instructed the jury:
THE COURT: Yes, again this evidence is admitted under those same instructions for your consideration, for what consideration you want to give to it, members of the jury, that is, what weight, credibility you want to give to the testimony, but it is strictly limited to the question of the state of mind, if any, of the accused on the occasions of the offenses that are brought against her in the indictment. We'll consider that evidence as to that issue only, and again, I'll refer you in greater detail and proper standards for consideration in the charge of the court that will be given to you at the end of all the evidence in the case.
In her seventh point of error, Breckenridge complains that the trial court erred in overruling her objection to the written limiting instruction contained in the jury charge. The limiting instruction reads:
You are instructed that the Defendant is on trial only on the charges contained in the indictment. In reference to any evidence that the Defendant has participated in other transactions or acts, other than but similar to those charged in the indictment in this case, you are instructed that you cannot consider any such transactions or acts for any purpose unless you find and believe beyond a reasonable doubt that the Defendant participated in any such transactions or committed any such acts. Even then you may consider such evidence only for determining the intent, if any, of the Defendant in committing the acts alleged in the indictment, if she did commit any such alleged acts, if such evidence does so assist you in making any such determination, and such evidence will not be considered by you for any other purpose.
Breckenridge contends that the written instruction was erroneous because it was limited to transactions or acts "similar to" the actions charged. Breckenridge asserts that the limiting instruction needed to extend to all extraneous misconduct, not just that which was similar to the charged conduct, because the extraneous misconduct about which N.L. testified was not similar to the charged offenses.
*127 Assuming, without deciding, that the trial court erred in including the phrase "similar to" in its written instruction, Breckenridge is required to show "some harm" resulted from the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.App.1984). Breckenridge contends that some harm is shown because a reasonable juror would not have believed that he could only consider N.L.'s testimony regarding the extraneous misconduct for the limited purpose of intent. Breckenridge's contention ignores that the trial court verbally instructed the jury after N.L. testified regarding each of the extraneous events that they were limited in how they could consider that testimony, and on two occasions told the jury that they would similarly be instructed in writing. In view of these verbal instructions, Breckenridge cannot demonstrate "some harm." Therefore, Breckenridge's seventh point of error is overruled.
In her eighth point of error, Breckenridge complains that the trial court erred when it failed to include a reasonable doubt instruction in its verbal limiting instruction. Rule 105 of the Texas Rules of Evidence states that when evidence is admitted for a limited purpose, the trial court must restrict the evidence to its proper scope and instruct the jury accordingly. TEX.R.EVID. 105. The trial court complied with this rule when it instructed the jury at the time the evidence was admitted. See Rankin v. State, 974 S.W.2d 707, 712 (Tex.Crim.App.1996). Neither Rule 105 nor any Texas case holds that the verbal limiting instruction must contain a beyond a reasonable doubt standard of proof instruction. But assuming, without deciding, that the trial court erred in refusing to include the beyond a reasonable doubt standard of proof within its limiting instruction, Breckenridge would be required to show that a substantial right was affected in order to demonstrate harm. See Rankin v. State, 995 S.W.2d 210, 215 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (applying harm analysis under TEX.R.APP.P. 44.2(b) to complete failure to give timely limiting instruction). The court of appeals in Rankin explained:
A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has a fair assurance that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim. App.1998).
Rankin, 995 S.W.2d at 215.
In this case, the jury was provided the beyond a reasonable doubt standard of proof in the written limiting instruction, and there is no evidence that the jury applied a different standard. Other than the attempt to challenge N.L.'s credibility by the lack of detail in his statements to the police, there was no evidence that N.L. was untruthful about the events. M.T. testified that he remembered N.L. and Breckenridge say they were going to the lake on May 28, 1998, and he saw N.L. leaving with Breckenridge. Examining the record as a whole, we have a fair assurance that the error, if any, in failing to include the beyond a reasonable doubt standard of proof in the verbal limiting instruction did not influence the jury. We overrule Breckenridge's eighth point of error.
LEGAL AND FACTUAL SUFFICIENCY
In points of error nine through sixteen, Breckenridge asserts that the evidence is legally and factually insufficient to *128 support the conviction. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993). In our factual sufficiency review, we must consider all of the evidence to determine whether the judgment is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). The trier of fact evaluates the credibility and demeanor of the witnesses and determines the weight to be given contradictory testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997). We are not permitted to reweigh the evidence, rather we defer to the trier of fact's findings, particularly those based on credibility determinations. See id. at 407-09.
To prove indecency with a child by exposure under section 21.11(a) of the Texas Penal Code, the State must prove: (1) the child was younger than 17 years and not the spouse of the accused; (2) the accused exposed any part of her genitals; (3) knowing the child was present; (4) with intent to arouse or gratify the sexual desire of any person. TEX.PEN.CODE ANN. § 21.11(a) (Vernon Supp.2000). Breckenridge challenges the findings that she "exposed" her "genitals," "with intent to arouse or gratify the sexual desire of any person."
Exposure has been defined as: "To deprive of concealment; to disclose or unmask something criminal, shameful, or the like." Balfour v. State, 993 S.W.2d 765, 769 (Tex.App.-Austin, pet.filed). The definition of "genitals" has previously been discussed. With regard to the incident on May 28, 1998, both M.T. and N.L. testified that Breckenridge removed her swimming suit, she never attempted to cover up, she saw the boys looking at her or observing her, and they both saw her pubic hair or area. With regard to the incident on June 3, 1998, E.A. testified that Breckenridge and A.L. removed her underwear and that A.L. was kissing her crotch area. E.A. stated that he saw Breckenridge's pubic area. Although A.L. stated that he did not remember anything after Breckenridge's pants going down, the jury could have disbelieved him. In addition, section 21.11(a) does not require proof that the victim actually saw the accused's genitals. See Uribe v. State, 7 S.W.3d 294, 297 (Tex. App.Austin 1999, pet. ref'd); Balfour, 993 S.W.2d at 769. We hold this evidence is legally and factually sufficient to prove that Breckenridge "exposed" her "genitals" to M.T. and N.L. on May 28, 1998, and to A.L. and E.A. on June 3, 1998.
The requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. [panel op.] 1981), Claycomb v. State, 988 S.W.2d 922, 925 (Tex.App.-Texarkana 1999, pet. ref'd). We hold that the jury could have inferred the requisite intent from Breckenridge's conduct and the surrounding circumstances in both instances. Points of error nine through sixteen are overruled.
The judgment of the trial court is affirmed.
HARDBERGER, Chief Justice, dissenting.
The majority holds that the trial court did not abuse its discretion in submitting a definition of "genitals" or "genitalia" in the jury charge. Because the term is not statutorily defined, I believe the trial court *129 erred in submitting the definition, and I respectfully dissent.
The general rule in criminal law regarding when definitions should be submitted to a jury is well-established. If a term or word is statutorily defined, the trial court must submit the statutory definition to the jury. See Arline v. State, 721 S.W.2d 348, 352 n. 4 (Tex.Crim.App.1986) (statutorily defined word must be included in the charge as part of the law applicable to the case); Roise v. State, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref'd) (statutory definition should be submitted). If a term is not statutorily defined, whether a trial court is obligated to define the term depends on whether the term has such a common and ordinary meaning that jurors can be fairly presumed to know and apply that meaning. See Russell v. State, 665 S.W.2d 771, 780 (Tex.Crim.App.1983); Phillips v. State, 597 S.W.2d 929, 937 (Tex. Crim.App.1980). Terms that are not statutorily defined are typically to be understood as ordinary usage allows, and jurors are presumed to know and apply the common and ordinary meaning. See Medford v. State, 13 S.W.3d 769, 771-72 (Tex.Crim. App.2000); Davis v. State, 949 S.W.2d 28, 29 (Tex.App.-San Antonio 1997, no pet.). As a result, if a word is not statutorily defined, the trial court is not required to define it. See Martinez v. State, 924 S.W.2d 693, 698 (Tex.Crim.App.1996); Davis, 949 S.W.2d at 29.
Under this general rule of law, if Breckenridge had requested that the trial court define the term "genitals" or "genitalia," the trial court would not have erred in refusing the request. See Martinez, 924 S.W.2d at 698; Davis, 949 S.W.2d at 29. The term "genitals" or "genitalia" has a common meaning, so no definition would be required. The question presented in this case, however, is the opposite of the question resolved by the general rule of law. We know that a trial court is not required to define a term that has a common meaning, but what if the trial court does?
In analyzing this issue, I would start with the proposition that "[l]anguage that is within the comprehension of persons of ordinary intelligence can seldom be made plainer by further defining or refining." Toney v. State, 3 S.W.3d 199, 206 (Tex. App.Houston [14th Dist.] 1999, pet. ref'd) (quoting Buel v. State, 104 Wis. 132, 80 N.W. 78, 85 (1899)). What is the effect of providing a definition under those circumstances? I believe such a definition should be given the same effect as a surplus instruction or definition in civil cases. In civil cases, trial courts are instructed not to burden the jury with surplus instructions even if the instruction is a correct statement of the law. See Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984). Surplus instructions are treated as impermissible comments that tilt or nudge the jury one way or the other. See Lemos v. Montez, 680 S.W.2d 798, 801 (Tex.1984).
In this case, Breckenridge's entire defense was centered on whether the jury understood the term "genitals" or "genitalia" as including pubic hair. The legislature, in enacting the criminal statute, chose not to define this term. A jury is entirely capable of deciding whether "genitals" or "genitalia" includes pubic hair. The jury should have been allowed to do so. The instruction caused harm for the following reasons. Most of the witnesses testified that they saw "pubic hair." By tailoring the instruction to the testimony, nothing was left for the jury to decide. The trial court had, in effect, directed the verdict. At the very least, the trial court's definition tilted or nudged the jury toward conviction. This is harmful error.
Words, phrases, and terms used in the Penal Code should be taken and understood *130 in their ordinary meaning in common language, except where legislatively defined. Neumuller v. State, 953 S.W.2d 502, 511 (Tex.App.-El Paso 1997, pet. ref'd). Trial courts should not be involved in the business of redefining words used in an ordinary sense by the Texas Legislature. Id. If the Texas Legislature believed that the term "genitals" or "genitalia" should be given a specific meaning, it would have provided one.
In a recent decision, the Texas Court of Criminal Appeals indicated that providing definitions that are not Constitutionally or statutorily mandated is ill-advised. See Paulson v. State, 28 S.W.3d 570, 572-73 (Tex.Crim.App.2000). The definition provided by the trial court in this case was not statutorily mandated, and the term has a commonly understood meaning. I would hold that the trial court erred in providing a definition instructing the jury that pubic hair constituted "genitals" or "genitalia."
NOTES
[1] Although the trial judge sentenced her to three years, during the sentencing hearing, the trial judge emphasized that he would grant Breckenridge a hearing on a motion for shock probation.
[2] The victims and most witnesses in this case are minor children, and they are identified by their initials throughout this opinion. At the time of the offenses charged in this case, M.T., A.L., and T.B. were fourteen years old, N.L. and J.R. were fifteen yeas old, and E.A. was sixteen years old. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1186188/ | 566 P.2d 1158 (1977)
OKLAHOMA ALCOHOLIC BEVERAGE CONTROL BOARD, Appellant-Cross-Appellee,
v.
HEUBLEIN WINES, INTERNATIONAL, Appellee-Cross-Appellant.
No. 49955.
Supreme Court of Oklahoma.
July 12, 1977.
Larry Derryberry, Atty. Gen. of Oklahoma, Daniel J. Gamino, Asst. Atty. Gen. of Oklahoma, for appellant-cross-appellee.
John B. Hayes, Watts, Looney, Nichols, Johnson & Hayes, Oklahoma City, for appellee-cross-appellant.
*1159 IRWIN, Justice:
The Oklahoma Alcoholic Beverage Control Board (Board) suspended the alcoholic beverage license (non-resident seller's) of Heublein Wines International (Heublein) for thirty days for the alleged violation of Art. 27, § 5,[1] of the Oklahoma Constitution, and 37 O.S. 1971, § 516. These provisions, with one narrowly defined exception, prohibit advertising the sale of alcoholic beverages within the State of Oklahoma. Heublein was charged with permitting an Oklahoma television station to broadcast a commercial which advertised the sale of wines.
Heublein appealed Board's order to the district court and also sought a declaratory judgment declaring the above prohibitory provisions unconstitutional when measured against the provisions of the Commerce Clause of the U.S. Constitution. U.S. Const, Art. 1, § 8. The district court vacated Board's order of suspension because the evidence was insufficient to sustain a finding that Heublein was "guilty of any willful misconduct" which would justify a suspension or revocation of its license. It also found Oklahoma's laws which prohibit advertising the sale of alcoholic beverages were not an undue burden on interstate commerce and not in violation of the U.S. Constitution.
Board appealed that part of the trial court's order which vacated its suspension order. Heublein cross-appealed from that part which upheld the constitutionality of the advertising prohibitions.
Heublein is a national concern engaged in the importation and wholesale distribution of wines and liquors and is the holder of a nonresident seller's license. 37 O.S. 1971, § 524(a).[2] Heublein purchased prime time television advertising on national networks as a part of its national marketing efforts. On three separate occasions television commercials originating as a part of national network programming, were televised in Oklahoma by local network affiliates. Either the national networks had failed to advise the local affiliate of the commercial or the local affiliate had inadvertently or mistakenly failed to "block out" that part of the national network commercials which advertised Heublein's products.
After the first of these telecasts, Board by letter notified Heublein, among other non-resident seller licensees, that national network affiliated stations in Oklahoma had been airing wine commercials. Approximately a year later, after a second such telecast, Board's Director conducted an informal inquiry into the appearance of Heublein's commercials on Oklahoma television. Board and Heublein stipulated that before Board's letter giving notice of possible violation of Oklahoma law and after that time, Heublein has continuously advised the television networks to take whatever steps were necessary to assure that Heublein's wine commercials would not be telecast by Oklahoma based affiliated stations. The record also demonstrates that in response to their advertiser's request, the national networks implemented a system of checks by which to assure notification to local affiliates of when and in what order Heublein's commercials would appear so they could be effectively "blocked out." Nevertheless, a third incident did occur and it was this last telecast of a Heublein wine commercial which resulted in the charge of unlawfully advertising and the subsequent thirty (30) day suspension.
The first issue presented is whether the trial court erred in holding Heublein had to be guilty of willful misconduct before its license could be suspended for unlawful advertising. The parties place in *1160 issue 37 O.S. 1971, § 524(c) and § 528(1)(a). Sec. 524(c) provides:
"The Board may, subject to the provisions of this Act requiring notice and hearing in the case of sanctions against holders of licenses, suspend or revoke a nonresident seller's license for any violation of this Act by the holder thereof." (Emphasis ours.)
Board contends that the above statute is a special statute relating to a non-resident seller's license only and that Heublein is subject to sanctions for any violation and the trial court erred in holding that the violation had to be "willful."
Heublein contends that § 524(c) is not applicable but the controlling provision is § 528(1)(a), which provides:
"Any license issued hereunder shall, by order of the Board, after due notice and hearing: (a) be revoked, or suspended for such period as the Board deems appropriate, if the Board finds that the licensee has wilfully violated any of the provisions of this Act".
Sec. 528, is a general provision governing the revocation or suspension of a license and under it the Board shall suspend or revoke "for such period as the Board deems appropriate" for a willful violation. Under § 524(c) the Board may suspend for any violation. Apparently Board proceeded under § 528 instead of § 524, because § 528 is mentioned in Board's "notice of Contemplated Suspension" and § 524 is not; and also, in its order of suspension, Board found Heublein did wilfully allow and permit the advertising. It is apparent that if Board's contentions are sustained sanctions may be imposed against a non-resident seller licensee for unintentionally doing certain acts whereas if the same acts were unintentionally done by a resident seller licensee, sanctions could not be imposed.
Extending this line of reasoning to another statutory provision we find that 37 O.S. 1971, § 536, which relates to price discrimination and rebates, makes no distinction between non-resident and resident seller licensees. However, if we follow Board's argument to its logical conclusion, Board could impose greater sanctions against a non-resident seller licensee for price discrimination under § 524(c) than it could impose against a resident seller licensee under § 536.
In our opinion, the Legislature did not intend and our statutes may not be construed as providing a different standard for the imposition of sanctions for non-resident seller licensees and resident seller licensees. We hold the trial court correctly determined that before sanctions could be imposed against Heublein for the complaint against it, Heublein had to be guilty of wilfully allowing and permitting the unauthorized television commercial. In the alternative, Board contends the evidence supports the suspension because Heublein "wilfully allowed and permitted the unauthorized advertisement."
The record will not support a finding that Heublein wilfully allowed the unauthorized advertising. We are concerned here with nationwide network television programming which serves all fifty states. The programs and commercials emanate from the headquarters of network television companies and are transmitted to affiliated stations in Oklahoma and elsewhere. It is possible for affiliate stations to "block out" any part of the network's programming or commercials, provided the affiliates have sufficient advanced notice of the telecast. If it is not "blocked out," it is instantaneously transmitted via the broadcast towers of the affiliate stations. Those companies desiring to advertise their alcoholic products nationally generally rely on the national networks to accurately inform their Oklahoma affiliates concerning the exact time the commercials will be telecast and the affiliates then "block" them out. Heublein and other similarly situated will not purchase and the national networks will not accept alcoholic beverage advertising unless it will be "blocked out" by the affiliates in Oklahoma and Mississippi.[3] This is *1161 so even though the national networks transmit their programs and commercials to all their affiliates or those located in a particular area.
There is no evidence that any person, directly or indirectly connected with the national networks, Oklahoma affiliates or with Heublein, intentionally or wilfully caused to be televised the unauthorized commercials forming the basis of the charge against Heublein. Nor will the evidence support a finding that Heublein was so negligent, careless or imprudent as to fail to make prompt inquiry and take such immediate action as was necessary to assure good faith compliance with the law. Oklahoma Alcoholic Beverage Control Bd. v. Moss, Okl., 509 P.2d 666 (1973). Although Heublein admitted the unauthorized telecasts, the evidence establishes that such telecasts were purely the product of mistake or inadvertence on the part of the national networks or their Oklahoma affiliates. The telecasts may not constitute grounds for suspension of Heublein's license.
We now turn to Heublein's contention that Oklahoma laws which prohibit advertising the sale of alcoholic beverages violate the Commerce Clause of the U.S. Constitution.
The Commerce Clause as traditionally construed by the United States Supreme Court prohibits state exercise of the police power in the regulation of business and industry so as to unreasonably burden commerce between the several states. Oklahoma v. Kansas Natural Gas. Co., 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716, 35 L.R.A.,N.S., 1193 (1911). However, where the exercise of the police power involves alcoholic beverages, the Commerce Clause must be construed in connection with the Twenty-First Amendment of the United States Constitution,[4] which in part provides:
"The transportation or importation into any State, Territory or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
The Supreme Court of the United States made it clear in the early years following the adoption of the Twenty-First Amendment that by virtue of its provisions a State is totally unconfined by traditional commerce clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders. Heublein v. South Carolina Tax Commission, 409 U.S. 275, 93 S.Ct. 483, 34 L.Ed.2d 472.
Heublein contends that advertising via network television is not "transportation or importation into Oklahoma" of intoxicating liquors. Heublein argues network televising is pure and simple interstate advertising and a state may not enact laws which have an "extraterritorial" application so as to prevent it from exercising its lawful rights in other states via network television.
In Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983, the Court considered a New Mexico statute which prohibited advertising by quoting prices or terms for the sale of eyeglasses. A New Mexico state trial court had enjoined a newspaper and a radio station, located in New Mexico but serving an area much of which was in Texas, from accepting or publishing a Texas Optometrist's advertising which violated the New Mexico statute. The Supreme Court of New Mexico affirmed [70 N.M. 90, 370 P.2d 811] and on appeal, the U.S. Supreme Court affirmed. The U.S. Supreme Court said:
"Without doubt, the appellants' radio station and newspaper are engaged in interstate commerce, and the injunction in this case has unquestionably imposed some restraint upon that commerce. But these facts alone do not add up to an unconstitutional burden on interstate commerce. As we said in Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 [78 *1162 A.L.R.2d 1294], upholding the application of a Detroit smoke abatement ordinance to ships engaged in interstate and international commerce ..., it must be borne in mind that the Constitution when `conferring upon Congress the regulation of commerce, ... never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the Constitution.' * * *."
In Head, supra, the Court was considering only the general regulatory police powers of the State. In the case at bar we have Oklahoma's general regulatory police powers strengthened by the Twenty-First Amendment. In California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342, the Court held that while the states require no specific grant of authority to legislate with respect to matters traditionally within the scope of the general police powers, the broad sweep of the Twenty-First Amendment, prohibiting the transportation or importation of intoxicating liquors into a state in violation of the state's laws, confers something more than the normal state authority over public health, welfare, and morals.
The mere fact that state action may have repercussions beyond state lines is of no judicial significance so long as the action is not within that domain which the Constitution forbids. Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074 (1950); Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966). A balance must be achieved between the lawful goal to be attained and the degree to which commerce outside the state is thereby incumbered.
Oklahoma's authority to regulate advertising the sale of alcoholic beverages, which in no way comes within the purview of interstate commerce, is not challenged. Although television stations are engaged in interstate commerce and Oklahoma laws prohibiting advertising the sale of alcoholic beverages (via television) have unquestionably imposed a restraint upon that commerce, these facts alone do not justify a holding they impose a constitutionally impermissible burden on interstate commerce. Even if the expanded authority of the State to regulate alcoholic beverages under the Twenty-First Amendment were not considered, the restraint imposed by the regulation would only be in conflict with the Commerce Clause if it were an "undue burden."
The only out of state burden imposed on anyone, other than the licensee, is the practical requirement that networks notify local affiliates of the time and placement of nationally televised liquor commercials. The Oklahoma television stations have the means and the ability to "block out" unauthorized commercials the same as they are able to "block out" any other national network programming they do not desire to telecast.
The purpose of advertising is to aid the marketing and distribution of the advertiser's product, in this case, wine. Advertising of liquor is an aspect of the liquor industry over which Oklahoma has chosen to exercise its regulatory powers. As stated in Heublein, supra, by reason of the Twenty-First Amendment a state is totally unconfined by traditional commerce clause limitations when it restricts the importation of intoxicants destined for use, distribution or consumption within its borders. And, as stated in Hostetter v. Idlewild Bon Voyage Liquor Corp., supra the Twenty-First Amendment and the commerce clause must each be considered in the light of the other and within the context of the issues and interests at stake in each individual case.
The issues and interests at stake in the case at bar place at cross-purposes the interests of Heublein, together with its advertising media, in the unencumbered distribution of its commercials and the interests of Oklahoma in the regulation of advertising of intoxicating beverages via television. Given the minimal interference with interstate *1163 commerce resulting from Oklahoma's exercise of its regulatory authority, we hold the interests of the State as established by the Twenty-First Amendment to be the superior.
Judgment of the trial court affirmed.
HODGES, C.J., LAVENDER, V.C.J., and WILLIAMS, BERRY, BARNES and DOOLIN, JJ., concur.
SIMMS, J., concurs in result.
NOTES
[1] Art. 27, § 5, of the Oklahoma Constitution, in part, provides: "It shall be unlawful for any person, firm or corporation to advertise the sale of alcoholic beverage within the State of Oklahoma, except one sign at the retail outlet bearing the words `Retail Alcoholic Liquor Store'."
[2] 37 O.S. 1971, § 524(a) provides: "A nonresident seller's license shall be required of all out-of-state distillers, winemakers, brewers, importers, brokers and others who sell alcoholic beverages to wholesalers and Class B wholesalers in Oklahoma regardless of whether such sales are consummated within or without the State of Oklahoma."
[3] The parties stipulated that Mississippi prohibits advertising the sale of alcoholic beverages.
[4] Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1471112/ | 359 F.Supp. 478 (1973)
Robert MARTARELLA, by his next friend and Law Guardian, Charles Schinitsky, et al., Plaintiffs,
v.
Florence KELLEY, Administrative Judge, the Family Court Judges of the State and City of New York, et al., Defendants.
No. 71 Civ. 3159.
United States District Court, S. D. New York.
June 13, 1973.
As Amended July 5, 1973.
*479 Charles Schinitsky, The Legal Aid Society, Brooklyn, N. Y., for plaintiffs; Mara T. Thorpe, Brooklyn, N. Y., of counsel.
Louis J. Lefkowitz, Atty. Gen., New York City, for defendants; Samuel A. Hirshowitz, First Asst. Atty. Gen., Maria L. Marcus, New York City, of counsel.
J. Lee Rankin, Corp. Counsel, New York City, for defendant Sugarman; Yvette Harmon, New York City, of counsel.
OPINION AND ORDER
LASKER, District Judge.
This civil rights action is brought by children defined under § 732 of New York's Family Court Act as Persons In Need of Supervision. They alleged that the conditions in which they are and have been held in the Juvenile Detention Centers of New York City, violate the Eighth Amendment of the Constitution. After a nonjury trial we held, by opinion filed October 16, 1972, that the physical conditions at Manida center were constitutionally inadequate, that they were adequate at Spofford, and that the issue as to Zerega, which had by then been closed, was moot. We also ruled that the rights of those who were held in long-term detentiona category whose definition was deferredwere violated because no adequate plan of treatment was provided for them.
In our opinion, we observed that:
"In a case of public import involving novel and delicate issues, in which developments in the very subject matter have occurred in the period between trial and decision, injunctive relief should be fashioned with deliberation. The timing of the closing of public facilities, the alteration of the programs for long termers, and determination of an acceptable definition distinguishing short and long termers are matters on which the court should not issue a decree without the considered guidance of the parties." 349 F. Supp. 575, 603.
*480 Since the date of the opinion, the Court has conferred on a number of occasions with the parties to consider the terms of an Order. In the course of those discussions, and from analysis of briefs, separate decrees proposed by the respective parties and affidavits in support of them, it became apparent that issues of fact remained to be explored as to 1) when Manida could and should be closed; 2) the definition, in terms of days of detention, of a long termer; 3) how the right to treatment of long termers should be implemented. As a result, the Court ordered a further hearing at which Wayne Mucci, Director of the Bureau of Institutions and Facilities of Special Services for Children (a division of the Human Resources Administration of New York City), testified extensively on March 14, 1973. Mr. Mucci appeared as a witness for the defendants. Plaintiffs rely on cross-examination of Mr. Mucci and on the affidavits, briefs and proposed decrees which they have submitted. In addition to studying the papers and conducting a further hearing, the Court visited Manida for a period of some hours on March 15, 1973.
There are substantial differences between the parties as to the relief which should be afforded. 1: Plaintiffs urge that Manida be closed immediately; defendants that its use be discontinued September 30, 1973. 2: Plaintiffs contend that detention in excess of 10 days be defined as long term; defendants that detention should not be considered long term unless it exceeds 45 days. 3: Plaintiffs propose a decree specifying detailed standards of treatment; defendants argue that the decree should include no reference to treatment, either general or specific.
1. Manida: In our earlier opinion, we described (at 597) the physical conditions which rendered Manida constitutionally inadequate under the Eighth Amendment and which prompted even the defendants to stipulate that the building was inappropriate as a facility for the detention of children. These included falling plaster, peeling paint, cracks in walls and ceilings, some unuseable plumbing, roof leaks, in addition to inadequate recreational facilities and other inherent deficiencies. Since the date of the opinion remediable defects have been cured: that is, wall cracks, roof leaks and plumbing malfunction have been repaired and the interior repainted. While the defendants agree that the building is still inappropriate for detention of children, they argue that these corrections have made the structure decently habitable for a further short period, and that the Court should allow its continued use during that interval to avoid the disruption of sending its resident girls to Spofforda boys' institutionuntil alternative facilities for girls, now being created, are available.
We find, as a result of our visit to Manida, that it is decently habitable for a further limited period and that the problems of placing the Manida girls in Spoffordparticularly setting up separate sleeping, eating and recreational arrangements for themare real and would cause significant disruption. Such disruption would be unjustified in light of the small gain to be accomplished during the short period of a few months being considered. Nevertheless, Manida should be closed as soon as practicable and we are not persuaded by anything in the record that such an extension should run to September 30, 1973, as suggested by the defendants. To the contrary, we find that, on the facts and testimony of the defense itself (Transcript of Hearing of March 14th, page 114), Manida can practicably be closed by August 15, 1973, and that the defendants should be held to that date.
We realize that the ability to move girls at Manida depends on a number of factors, including the completion and operation of various new small facilities. But we believe that the accomplishment of the program by August 15th is feasible, that it is more likely to occur if August 15th is set as the critical date than if not, and that constitutional rights *481 cannot be further deferred without a showing of impossibility of performance.
2. Definition of Long-Term Detention: The parties agree that a plan of treatment for a child held at Juvenile Center is desirable, and we have held it constitutionally necessary. The parties differ as to how long-term detention should be defined; plaintiffs proposing a ten day, and defendants a forty-five day period. Defendants argue, in effect, that if the definition of long term were set below forty-five days, the number of children to whom it would apply would be so great that the staff would be insufficient to evolve and administer plans of treatment. This argument must be rejected, first, because constitutional rights cannot be denied on account of inadequacy of government resources (Wyatt v. Stickney, 344 F.Supp. 373 (1972) and 344 F.Supp. 387 (M.D.Ala. 1972); Jones v. Wittenberg, 330 F. Supp. 707 (N.D.Ohio, W.D.1971), aff'd sub. nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972); Inmates of Boys' Training School v. Affleck, 346 F.Supp. 1354 (D.R.I.1972) and New York State Ass'n for Retarded Children, Inc. v. Rockefeller and Parisi v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y.1973)); second, because if the argument were accepted the result would be that the larger the number of children detained for long periodsand therefore needing treatmentthe higher would be the threshold of definition and the fewer the number of children receiving treatment; third, the facts and testimony submitted by the defendants themselves confirm that the threshold of definition can practicably be set well below forty-five days even within present limitations of personnel available (see, e. g., Transcript of Hearing, March 14th, page 114).
The defendants admit "frankly that we can handle the 30 day program" (Transcript of Hearing, March 14, 1973, page 44), and that the sole reason for proposing a forty-five day definition is that it would allow the staff to do a good job, whereas lowering the threshold would lower the quality of the program.[1] A deficiency of personnel, however, cannot be accepted either logically or constitutionally as a rationale for defining the needs of those entitled to treatment. If more staff members are necessary to do the job, the City must furnish them in order to meet its constitutional obligations.
We recognize that neither psychiatric, social work nor legal standards have advanced to a point which establish a particular definitional threshold of long-term detention as being demonstrably correct; that is, of defining the point in time beyond which holding a child in secure custody without "treatment" violates the Eighth Amendment. it is nevertheless our obligation to establish such a threshold. In doing so we must remember that the Eighth Amendment does not impose on the States the requirement of furnishing the best possible service for those in custody nor of adhering to the highest professional standard. The office of the Eighth Amendment is to assure that custodial conditions are minimally acceptable that is, not cruel or unusual. Applying this admittedly elusive and difficult concept we find, on such evidence as the record contains, that when a child is held for 30 days or longer in secure custody without "treatment", that deprivation is of constitutional proportion; *482 and, accordingly, we define detention for 30 or more days as "long-term".[2]
3. Specificity of the Order: We agree with plaintiffs that our Order should be specific in outlining a constitutionally adequate standard of treatment at the Centers.
Although we share the frequently enunciated view that it is generally undesirable (both for the courts and the institutions) that courts should administer institutions, there are a number of reasons why we have concluded that in the circumstances of this case a specific Order is necessary.
In the first place, our Order does not contemplate continuing administration by the court, but rather the establishment of standards which the institution will administer just as it administers legislative or regulatory standards. Second, we rehearsed, in our earlier opinion, the sad history of ignored reports over a period of generations (culminating in the Stone and Citizens Committee Reports of 1971 and 1970), all urging reform and improvement of juvenile detention facilities, and all being largely, if not altogether disregarded and treated as mere pious sentiment.
Indeed, the 1973 Criminal Justice Plan of the Criminal Justice Coordinating Council of New York City points out that many of the deficiencies earlier noted remain. For example, it comments (at page 71) that "[b]uilt into the juvenile justice system to a far greater degree than its criminal justice counterpart is the structure for rehabilitation", "albeit a shell mostly empty of the elements necessary to accomplish this purpose." It states further, at page 84:
"Needed reforms in the Family Court far outweigh the advances made thus far. The most severe problems continue to be both the dearth of services available to the court and failure to fully utilize the aids that are at hand."
Furthermore, the very recent (December 1972) report "Designation of Facilities for the Questioning, Detention and `Holding' of Children, Under the Family Court Act", prepared by the Subcommittee on Detention and Placement for Children of the Appellate Divisions, First and Second Departments, points up the desirability if not the indispensability of establishing specified criteria for the operations of juvenile detention facilities. For example, the Subcommittee recommends that:
"The Appellate Divisions should be supplied with the criteria upon which the New York State Board of Social Welfare and the New York State Division for Youth will base their requests for designation of a facility. These criteria should include program, staff, and physical condition of the facility, and these criteria should be part of the public record."
Appendix B to the report emphasizes (B41) the significance of physical standards and treatment standards at designated facilities. It specifies as services which are appropriate "effective educational service, conditions which are not overcrowded, removal of threat of inappropriate discipline, recreational facilities, respect for privacy and dignity of a child and his family, availability of appropriate and necessary medical, dental and even psychiatric care." We cannot ignore this history in determining the degree of specificity which the Order in this case should observe.
Furthermore, we do not believe that the standards required by our Order exceed those acknowledged by the responsible administrators to constitute minimally good professional practice, nor do we believe that they will prove burdensome to the City. To the extent that they may require further expenditure, the *483 taxpayers are called upon only to meet the constitutional rights of the City's own children. Moreover, it is desirable that all staff members of the institutions understand as clearly as possible what standards must be met, as well as the clear necessity for achieving them.
Beyond that, court specification of standards for care is no longer novel and has been recognized as the appropriate dispositional method by an increasing number of Federal Courts in cases involving disadvantaged institutional inmates. See Wyatt v. Stickney, supra; Rhem v. McGrath, 326 F.Supp. 681 (S. D.N.Y.1971); Jones v. Wittenberg, supra; Inmates of Boys' Training School v. Affleck, supra; and New York State Ass'n for Retarded Children, Inc. v. Rockefeller and Parisi v. Rockefeller, supra. As stated in Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1970):
"The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case."
Finally, it is appropriate to remember that administrators come and go, but institutions continue, and old and new inmates are affected by the standards of the institution. Our conclusion that the Order in this case should be specific is not intended as a reflection either on the professional skill of the present administration or its desire to do the job. Indeed, the Assistant Commissioner for Special Services for Children, and the Director of its Bureau of Institutions and Facilities have, since they acquired jurisdiction of the Centers after this suit commenced, done a distinguished job of improving the standards of care at the Centers, in instituting treatment and training plans, improving staff-child ratios and correcting the correctable at Manida. But they are political appointees, in all likelihood soon to be followed by new appointees. A clear mandate should be set for whoever occupies the positions of responsibility. Furthermore, the responsibilities of other elements of the juvenile justice systemin particular, the Family Court and the Probation Departmentshould be defined, since one significant deficiency in the Centers' ability to treat its children-wards has been the failure by those agencies to furnish to the Centers, as rapidly as possible, all information in their possession relating to the children.
For the reasons stated above, and in our opinion of October 16, 1972, it is Ordered, Adjudged and Decreed:
1. That defendants are enjoined from failing to implement, in accordance with their respective responsibilities under law, the standards set forth in Appendix A annexed hereto and incorporated in this Order.
2. That the use of Manida Juvenile Center as a detention facility shall be discontinued no later than August 15, 1973.
3. Jurisdiction of this action is retained to assure the execution of this Order and to permit such modifications, if any, as may be necessary from time to time in the light of the rights and duties of the parties.
APPENDIX A
1. "Long-term detention" is defined as custody of a child in a secure detention facility for 30 or more days of continuous or substantially continuous detention from the date of admission.
2. This appendix establishes minimal standards for the treatment of children held in long-term detention, as well as conditions which must occur or exist prior to the child's 30th day of detention to assure the effectiveness of the treatment plan.
3. "A secure detention facility" is defined as a facility (whether now or hereafter in existence) characterized by physically restrictive construction and procedures which are intended to prevent a child from departing from the facility at will.
*484 4. Any caseworker employed in a secure detention facility shall possess a Bachelor's Degree and shall have taken courses in social work or the behavioral sciences, which, together with his demonstrated aptitude and work experience, shall, in the good faith opinion of the appropriate administrator of the facility, qualify him to act as a caseworker for children who have behavioral problems or are emotionally disturbed. Every caseworker shall participate in in-service training.
5. Any recreational worker employed in a secure detention facility shall have undergone training in physical education or shall possess such demonstrated aptitude and work experience as shall, in the good faith opinion of the appropriate administrator of the facility, qualify him to supervise the recreation of children who have behavioral problems or are emotionally disturbed. Every recreation worker shall participate in in-service training.
6. Any children's counselor employed by a secure detention facility shall possess a high school diploma and have completed two years (60 credits) of college education. He shall have performed two years of community or institutional work with children and shall possess a demonstrated aptitude which, in the good faith opinion of the appropriate administrator of the facility, qualifies him to act as a counselor for children who have behavioral problems or are emotionally disturbed. Every children's counselor shall participate in in-service training.
7. In-service training shall consist of (a) appropriate orientation to agency rules, procedures and policies and, special needs including therapeutic approaches, of children who have behavioral problems or are emotionally disturbed and who are confined in secure detention and (b) a continuing program of seminars or work shops, conducted by persons with appropriate experience, for the purpose of developing special skills and methods of dealing with such children.
8. "Treatment" is defined as a therapeutic living situation for a child, including his grouping with other children; the adequacy and competency of staff members dealing with him or his case; diagnosis of his emotional and psychological needs and on the basis of such diagnosis and all other information about the child that is available, and the provision of appropriate mental health, case work, educational, recreational and medical services for him.
9. A child confined to a secure detention facility shall be afforded treatment appropriate to his individual need as determined by a suitably constituted team of staff members who have responsibility for his case.
10. On the day the child is remanded by the Family Court to a secure detention facility, the Family Court Judge and the Probation Department shall cause to accompany him a copy of the social information compiled by the Probation Department from any source including prior probation records, interviews with the child, family, guardian or any public or private agency having previous knowledge of the child, as for example, schools, mental hygiene or child guidance clinics, Department of Social Services or hospitals.
11. All reasonably available information of the type described in Paragraph 10 above, which has not been collected by the Probation Department and forwarded to the secure detention facility on the day of the child's admission, shall be obtained and forwarded as soon as practicable after the child's admission.
12. As soon as practicable after the child's admission to a secure detention facility, he shall be assigned to and confer with a caseworker who has reviewed the material received from the Probation Department referred to above. That caseworker shall remain the child's caseworker during his confinement to the extent that his doing so will not interfere with the establishment of the working team referred to in Paragraph 13 below and its ability to carry out its function.
*485 13. As soon as practicable after the admission of the child to a secure detention facility and no later than 10 days thereafter, he shall be observed and evaluated for the purpose of assignment to a permanent living unit. Such evaluation and determination shall take into consideration all relevant factors including his maturity, emotional development, emotional and psychiatric history, findings of fact, or, if they are known, the charges against him, and evidence of drug use and shall not be made on the basis of age, size and aggressiveness only. The evaluation and assignment process shall be conducted by a team including, to the extent appropriate, a caseworker, counselor, teacher, psychiatrist or psychologist and physician. The assignment and interim treatment plan developed, and the reasons therefor, shall be in writing, signed by the person responsible for leading the team, and a copy of the plan shall be given to the child's Probation Officer, and, if authorized by the child, to his attorney or law guardian. Unless the counselor on the permanent living unit was a member of the evaluation team, the person responsible for leading the team shall give the counselor an interpretation of the child's need and such information as is necessary to ensure appropriate handling of the child.
14. Each child shall be afforded no less than two hours a day on school days, and three hours a day on nonschool days, of planned and structured recreational activity.
15. Each child shall be afforded reasonable access to a psychiatrist in accordance with his needs in appropriate instances including consultation and crisis intervention.
16. A child who attempts suicide shall be afforded immediate treatment in a psychiatric hospital unless a psychiatrist examines him immediately after his attempt and states in writing that such hospitalization is not necessary.
17. Each child shall be afforded an individualized treatment program including the components listed below in Paragraphs 18 through 26.
18. Each such child shall be assigned to a living unit, therapeutic for him as determined by the evaluation team, and containing no more than the number of children which can be appropriately cared for on the basis of their individual needs.
19. There shall be no less than two counselors for each 20 children.
20. There shall be no less than one recreation worker for each 15 children during recreational activities.
21. There shall be no less than one caseworker for every 15 children. When a child is returned to the detention facility after a period of release, he shall be reassigned to his last caseworker whenever practicable.
22. The child's caseworker shall confer at reasonable intervals with the child's counselor.
23. No later than the 20th day of a child's confinement, there shall be a full case conference between the child's counselor, caseworker, probation officer, and any examining or treating psychiatrist or psychologist and one of the child's teachers, at which an individualized long treatment plan shall be formulated and recorded. Each child held in long-term detention shall have the right to implementation of such long range treatment plan to the fullest possible extent.
24. A full case conference as to the child shall be held thereafter at suitable intervals to review his treatment plan and progress and to provide such revisions in the plan, if any, as are determined necessary. Each such conference shall be reported in writing and any revisions determined shall be implemented as indicated.
25. A complete file for each child shall be maintained and shall contain a copy of all reports referred to in the paragraphs above, and shall be available to personnel having direct responsibility for the child. All information contained in such file shall be considered privileged *486 and confidential. A summary of the pertinent findings in such file shall be sent to the child's Probation Officer. On consent of the child, his attorney or law guardian shall be permitted access to the file.
26. There being no dispute as to the value of the appointment of an independent ombudsman to hear and act on grievances of children held in long-term detention, the administrator of the secure detention facilities shall within 30 days of the filing of this Order submit to the Court a plan for the appointment of such an official. The plan shall include a description of the qualifications and duties of the ombudsman and procedures for his appointment.
27. When the masculine is used in this appendix, it shall be construed to include the feminine.
28. The provisions of Paragraphs 1 through 27 above, shall become effective July 14, 1973.
NOTES
[1] The defendants properly point out that, if standards of treatment are to be set for PINS (plaintiffs here), they should be the same for the delinquent children with whom PINS are housed at the Center, even though the delinquent children are not included in the plaintiff class; that is, that the improvement for PINS should not be at the expense of JD's by diverting personnel to one group exclusively. We agree with this view, and have considered the impact of our Order on the institution as a whole.
[2] As pointed out in our earlier opinion, a 30 day period was suggested by the Citizens Committee for Children of New York Inc. in its searching study of conditions at the Juvenile Centers, and reiterated in its letter of December 22, 1972 to the Court in support of defendants' request for relief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1699662/ | 278 N.W.2d 123 (1979)
Edwin ZUNDEL, Plaintiff and Appellee,
v.
Joseph M. ZUNDEL, Defendant and Appellant, and
Elmer J. Zundel, Minnie Rossetti, Albert C. Zundel, Esther L. Shaw, August A. Zundel, Leslie Zundel, Deceased, and all persons unknown claiming any estate in, or lien or encumbrance upon, the property described in the Complaint, Defendants and Appellees.
Civ. No. 9531.
Supreme Court of North Dakota.
April 12, 1979.
Rehearing Denied April 24, 1979.
*125 Roy A. Holand, LaMoure, for defendant and appellant.
Lashkowitz Law Offices, Fargo, for plaintiff and appellee; argued by Senior Law Student William Kennelly and Herschel I. Lashkowitz.
SAND, Justice.
Edwin Zundel brought an action in LaMoure County District Court seeking the imposition of an implied trust over certain lands of which his brother, Joseph Zundel, has been the record title owner. Edwin contended the real estate was purchased in 1941 under a contract for deed in which Joe was named as vendee, but that the purchase price was paid by their mother, Justina, now deceased. The district court determined Joe held the realty in trust and ordered it be divided between the seven surviving Zundel brothers and sisters.
The land in question, approximately 440 acres located in LaMoure County, was originally acquired by the parties' father, Gottfried Zundel. Prior to his death in 1931, Gottfried transferred the land to his wife, Justina, who continued to own the land and operate the farm located thereon until the mid-1930's when the Federal Land Bank acquired it following foreclosure of a mortgage on the land and a subsequent deed. After the foreclosure sale, Justina and her family continued to reside on and operate the farm under a lease arrangement with the Federal Land Bank.
In 1941 Joe entered into a contract for deed with the Federal Land Bank for the purchase of the land. The contract provided for a purchase price of $4,000 with a $500 down payment and one-third of each year's crops grown on the land be paid to the Federal Land Bank until the balance due on the contract was retired. The contract also provided it was subject to the terms of the lease with Justina which was assigned to Joe.
At the time Joe entered into the contract for deed in 1941, only he, his mother, and three of his brothers (August, Albert, and Edwin) remained on the farm. August moved from the State in the fall of 1941; Albert left to serve in the armed services in the spring of 1942; and Edwin attended high school until the spring of 1942, at which time he started farming with his mother and his brother Joe. Evidence was introduced at trial that the three older brothers and sisters (Minnie, Elmer, and Esther) periodically returned to the farm during this time and subsequent thereto to help on the farm. The length of the visits and extent of the help rendered, however, was in dispute.
The down payment for the purchase of the property was made by check written by Joe on his mother's account. Testimony was offered that money in this bank account, as well as money used later to pay for the remainder due on the contract for *126 deed, was obtained through the farming efforts of Justina. Joe testified, however, the money in the bank account was partially his as he deposited money from his farming operations into his mother's account and did not open his own account until some time after the purchase of the land. Joe stated he was authorized to write checks on his mother's account and frequently did so in the payment of farm expenses. A bank officer testified the practice of children writing checks on their parents' bank accounts was not uncommon during that period of time.
Four of the Zundel brothers and sisters testified that although Justina purchased the property in question, she wanted legal title placed in Joe's name to avoid payment of the prior mortgage. They testified Justina feared if the land was purchased in her name she might become liable on the approximate $12,000 mortgage that was foreclosed on in 1937. They stated that because August and Albert were planning to leave the farm at the time of the purchase, Justina wanted the land in Joe's name as he was the eldest son remaining on the farm. They further testified the Zundel family discussed the purchase of the land and the particular purchase arrangement both before the contract was entered into and later when the children returned to the farm for visits.
Joe contended he was the sole negotiator for the purchase of the land, and although his mother approved of the purchase she did not desire to purchase the land herself because if Joe left the farm Justina feared she might lose it again without his help. Joe testified he used income not only from the land in question but also from other land he farmed to complete the purchase in a shorter time period than provided for under the contract for deed. Payment under the contract was completed and the deed was issued to Joe in 1943.
In approximately 1943, Joe was married and moved off the home farm to a house a short distance away. Justina continued to reside on the farm, together with Edwin and Albert, who returned from the service 100% disabled.
After the purchase of the land in 1941, it, along with other lands owned or leased by Justina and Joe, were farmed through the joint efforts of Joe, Justina, and Edwin.
During a part of the 1950's Joe and Edwin farmed much of their land, as well as that of their mother, in a somewhat informal partnership arrangement under which equipment, expenses, and profits were shared. In 1957 the informal partnership arrangement ended and the land in issue in this case was farmed by Edwin with him receiving three-fourths of the income and Justina receiving one-fourth. This arrangement appears to have lasted up until 1964, when Justina died. Edwin testified after his mother's death he, Joe and Albert arrived at an arrangement concerning the 440 acres where Albert would be allowed to reside on that tract of land on which the buildings were located, while Edwin and Joe would each get a quarter section of the remaining land and a cash settlement would eventually be made to the other brothers and sisters. Edwin would be allowed to farm the land and keep seven-eighths of the income, and Joe was to get the remaining one-eighth of the income. (Joe's one-eighth share was to represent a one-fourth share from the quarter of land he was eventually to receive spread over both quarters to be farmed by Edwin.) Edwin's testimony indicated neither a cash settlement to the remaining brothers and sisters nor a final settlement to divide the land was arrived at because Joe kept putting the issue aside when approached with it.
Joe testified that following his mother's death he agreed to rent the land in question to Edwin. Joe stated although he received some money from this rental arrangement, the money he received did not equal the amounts Edwin was to pay under the agreement despite repeated requests for the money by Joe. He stated it was Edwin's failure to make complete payments, along with other incidents, that eventually led to a decision by Joe to no longer allow his brother to farm the land.
*127 This case was commenced by issuance and service of a summons and complaint dated 29 July 1977. An amended complaint was filed by Edwin on 31 January 1978 seeking a division of the land among the seven living Zundel children. Joe filed an amended answer in which he cross-petitioned seeking the court to quiet title in his name and requiring Edwin to make an accounting for the use of the land for the years 1958 through 1977. Following a bench trial, the district court made, among others, the following pertinent findings of fact:
"That the said land was purchased in 1941 from the Federal Land Bank of St. Paul, Minnesota, in the name of Joseph M. Zundel, Defendant herein, with moneys belonging to his mother, the late Justina Zundel.
"That there was an understanding by and between Justina Zundel and the Defendant, Joseph M. Zundel, that he would divide the land between his brothers and sisters herein after his mother's demise.
"That Defendant, Joseph M. Zundel, farmed Justina's land, including the land purchased from the Federal Land Bank and other land, he, Defendant, Joseph M. Zundel, rented from the mid 1930's until 1956, that the Plaintiff, Edwin Zundel, assisted Defendant, Joseph M. Zundel, and others in farming the land from the early 1940's onward, and that Justina Zundel got all the income from the land purchased from the Federal Land Bank and other lands she had acquired through the 1940's and 1950's.
"That Plaintiff, Edwin Zundel, Defendant, Joseph M. Zundel, their mother, the late Justina Zundel, and Plaintiff, Edwin Zundel, and Defendant, Joseph M. Zundel, combined paid the real estate taxes on the land over the years involved herein.
"That the Defendant, Joseph M. Zundel, paid the insurance premiums on the buildings but kept the moneys paid for a loss stating it was reimbursement to him for premiums paid.
"That the Plaintiff, Edwin Zundel, paid the Defendant, Joseph M. Zundel, approximately Five Thousand Dollars ($5,000.00) in 1975 to compensate Defendant, Joseph M. Zundel, for taxes Defendant heretofore had paid on the said land.
"That the Defendant, Joseph M. Zundel, made no overt attempt to exercise control over the land that evidenced his outright ownership until 1976 and after he was involved in litigation with Plaintiff on another matter.
"That Defendant, Joseph M. Zundel, in a conversation with Plaintiff's son, Loren, in April, 1977, stated the land should be divided between the seven (7) Zundel brothers and sisters."
The district court's conclusions of law stated in part:
"That the trust created is a trust supportable either as a resulting or a constructive trust and that proof of the trust is clear, specific and substantial.
"That Defendant, Joseph M. Zundel, repudiated the trust arrangement in 1977.
"That equity compels a division of the realty by and between the seven (7) Zundel brothers and sisters, each to receive a one-seventh (1/7) interest in said land.
"That Defendant, Joseph M. Zundel, should be reimbursed for the payment of real estate taxes on said land herein for the years 1975, 1976, and 1977 and insurance premiums paid on said land for the years 1975, 1976, and 1977 which has not already been recompensed in the sum of Two Thousand Seven Hundred Eighty-eight Dollars and Thirty-seven Cents ($2,788.37).
"That Defendant, Joseph M. Zundel's Counterclaim be dismissed in all things."
Judgment was entered in accordance with the court's findings of fact and conclusions of law. Joe filed a motion to amend the findings of fact and conclusions of law as to provide in summary that the land was not purchased with Justina's money, that no trust was created, and that Edwin be required to make an accounting for rent due Joe. The motion also requested, in the event the court rejected this amendment, an accounting of profits of the trust property be made by Edwin for the time he held *128 the property and that Joe be reimbursed by the other beneficiaries for expenses he incurred while holding title to the land. Joe's motion was denied by an order of the district court dated 30 May 1978. Joe appealed from both the order denying his motion and the earlier judgment.
We determine the following to be the issues on appeal:
(1) Was the evidence sufficient in this case to create an implied trust;
(2) Was Edwin barred from bringing his action by the statute of limitations;
(3) Should Edwin be required to make an accounting for the period of time he was in possession of the trust property.
The trial court concluded the facts of this case supported the creation of either a constructive or a resulting trust. The classification of constructive or resulting trusts has been eliminated by statute in North Dakota as all trusts created by operation of law are termed implied trusts. Section 59-01-05, North Dakota Century Code.[1]
Although the "constructive" and "resulting" trust labels have been eliminated by North Dakota statute, the substantive considerations that give rise to these trusts created by operation of law remain the same. Consequently, the considerations determinative in the creation of constructive and resulting trusts are important in determining the creation or existence of an implied trust under North Dakota statute. Because we determine the record supports the creation of a resulting trust, we need not examine the elements or existence of a constructive trust in this case.
Generally where a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person by whom the purchase price is paid. Restatement of Trusts 2d § 440; Smithsonian Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L.Ed. 793 (1898); Kernkamp v. Schulz, 44 N.D. 20, 176 N.W. 108 (1919); § 59-01-06(4), NDCC.
"A `resulting trust' exists where the acts or expressions of the parties indicate an intent that a trust relation resulted from their transaction." Scheid v. Scheid, 239 N.W.2d 833, 837 (N.D.1976).
Thus, whether or not a resulting trust has been created is primarily a question of intention. Shong v. Farmers' & Merchants' State Bank, 70 N.W.2d 907 (N.D.1955); see, Note, TrustsImplied Trusts in North Dakota, 29 N.D.L.Rev. 58 (1953).
This court has, however, also stated the general rule that if a father or parent pays the consideration and has the conveyance run through his child, there is a rebuttable presumption of a gift. Shong v. Farmers' & Merchants' State Bank, supra. We have also stated "[m]ost decisions treat the cases in which the mother is the payor and the child is the grantee in the same way as where the father pays the purchase price." Shong, supra, at 912.
"The facts aside from the source of payment and the form of the deed are important by way of rebutting or corroborating the finding of a gift intent. The health, age, financial condition and the business experience of the mother are to be considered in determining the issue. It would be exceedingly natural for a wealthy mother to make a gift of part of *129 her property to her child. The opposite, however, is true if the mother has little. See Volume 2A, Bogert, Trusts and Trustees, Section 460, page 500." Shong v. Farmers' & Merchants' State Bank, supra at 912.
We also find pertinent to this case the following comment from the Restatement of Trusts 2d § 443:
"The intention of the payor not to make a gift to the transferee may be shown not only by oral declarations of his intention, but also by the circumstances under which the transfer is made. . . . the fact that the circumstances are such that the payor would have a reason for taking title in the name of another other than an intention to give him the beneficial interest is an indication that he did not intend to make a gift . . . .
"It is the intention of the payor at the time of the transfer and not at some subsequent time which determine whether a resulting trust arises. . . . The conduct of the payor and of the transferee subsequent to the transfer, however, may be such as to show that at the time of the transfer the payor did not intend to make a gift to the transferee. Thus, the fact that the payor manages the property, collects rents, pays taxes and insurance, pays for repairs and improvements, or otherwise asserts ownership, and the acquiescence by the transferee in such assertion of ownership, is evidence to rebut the inference of an intention by the payor to make a gift to the transferee."
When a party seeks the imposition of an implied trust, he carries a heavier burden of proof than the mere preponderance of evidence standard required in most civil cases.
"The courts are reluctant to ingraft a trust by parol on the legal title to real estate, and there is perhaps no better established doctrine than the one which requires a high degree of proof in order to establish the trust by parol evidence. 23 A.L.R. 1500, 1502 and cases cited; Carter v. Carter, 14 N.D. 66, 103 N.W. 425; Holler v. Amodt, 31 N.D. 11, 153 N.W. 465; Bernauer v. McCaull-Webster Elevator Co., 41 N.D. 561, 171 N.W. 282. These cases hold that the proof of an implied or resulting trust must be clear, specific, substantial, and satisfactory." Shong v. Farmers' & Merchants' State Bank supra at 911.
In arguing the evidence in this case does not support the existence of a resulting trust, Joe relied heavily upon what he called the "Bodding doctrine" as taken from the opinion of this court in Bodding v. Herman, 76 N.D. 324, 35 N.W.2d 561 (1948), where we stated:
"The evidence to establish an implied trust, however, must be clear and convincing. There must be a satisfactory showing of a wrongful detention of the property, or fraud, undue influence, the violation of a trust, or other wrongful act by virtue of which the party is holding title to property which he should not hold under the rules of equity and good conscience. The evidence must be strong enough to lead to but one conclusion. If the evidence is doubtful or capable of reasonable explanation upon theories other than the existence of a trust it is not sufficient to establish a trust. See 35 A.L.R. 286, 307; 45 A.L.R. 852; 80 A.L.R. 198 and cases cited. See also 2 Bogert on Trusts and Trustees, § 464." [Emphasis added.] 35 N.W.2d at 563.
See also, Scheid v. Scheid, supra; Lander v. Hartson, 77 N.D. 923, 47 N.W.2d 211, 215 (1951).
Joe argued, in effect, that under the Bodding doctrine a trust may not be sustained if any of the evidence presented at trial supports a theory other than the existence of a trust. We believe the interpretation of the Bodding language urged on us by Joe would create a burden of proof upon a claimant equivalent to or greater than the "beyond a reasonable doubt" standard required in criminal cases. We decline to impose such a high burden as a prerequisite to what has historically been an equitable remedy.
The plain language of prior opinions of this court have stated a clear and convincing *130 standard of proof is the necessary requirement to the establishment of an implied trust. Not only does the weight of evidence required to meet such a standard not rise to the level of that required to meet the standard of beyond a reasonable doubt, but also the evidence need not be undisputed to reach the clear and convincing standard. Crain v. Keenan, 218 Ark. 375, 236 S.W.2d 731 (1951). Rather, under the clear and convincing standard, the evidence must be such that the trier of fact is reasonably satisfied with the facts the evidence tends to prove as to be led to a firm belief or conviction. Williams v. Wager, 64 Vt. 326, 24 A. 765, 766 (1892); In re Chappell, 12 Ohio Op. 499, 33 N.E.2d 393, 397 (Ct.App. 1938).
The requirement announced in Bodding that "the evidence must be strong enough to lead to but one conclusion" is separate and distinct from claimant's requirement of meeting the clear and convincing evidence standard. The Bodding doctrine requires the evidence upon which the implied trust rests, whether presented by claimant or defendant and as weighed by the trier of facts, must be clear and convincing and must be strong enough to support but one conclusion. Bodding does not stand for the proposition, as contended by Joe, that if conflicting or disputed evidence is introduced an implied trust cannot be found to exist. The trier of fact is always given an opportunity to observe the demeanor of the witness, to weigh, judge, test, and compare evidence in connection with all the facts and circumstances in evidence. Burningham v. Burke, 67 Utah 90, 245 P. 977 (1926). The trier of fact reaches its decision only after this weighing process is complete. The existence of conflicting testimony or other explanations of the evidence does not prevent the factfinder from reaching a conclusion the evidence is clear and convincing or even clear beyond a reasonable doubt. If we were to apply the Bodding doctrine as construed by Joe it is doubtful an implied trust could ever be established unless the opposing party so agrees because invariably evidence in opposition to an implied trust would be introduced.
Because often the most critical question as to who should prevail in lawsuits such as this rests upon the sufficiency of evidence produced to meet the extraordinary burden of proof required, the standard of review used by this court in its appellate function is vitally important. Under North Dakota Rule of Civil Procedure 52(a), our scope of review is limited to determining whether or not the district court's findings are clearly erroneous, giving due regard to the opportunity of the trial court to assess the credibility of witnesses. When, as here, we are reviewing findings made pursuant to the clear and convincing evidence test, the trial court's opportunity to judge credibility must still be given considerable weight. The rule that the evidence of an implied trust must be clear and convincing is one to be applied by the trial court which sees and hears the witnesses and is charged with the duty of weighing their testimony. If the record contains substantial evidence sustaining the decision of the trial judge that may fairly be said to comply with the requirement that the proof be clear and convincing, this court will not substitute its judgment for that of the trial court. Breelan v. Hide-A-Way Lake, Inc., 585 F.2d 716, 722 (5th Cir. 1978); Collins v. Parkinson, 98 Idaho 871, 574 P.2d 913, 916 (1978); Matter of Estate of Courtright v. Robertson, 99 Idaho 575, 586 P.2d 265 (1978); Hunt v. Pan American Energy, Inc., 540 F.2d 894, 908-901 (8th Cir. 1976), cert. denied 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 778. Contra, Soccodato v. Dulles, 96 U.S.App.D.C. 337, 226 F.2d 243 (1955). The mere fact evidence was presented contrary to a particular finding does not make it clearly erroneous, rather, a finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Haugeberg v. Haugeberg, 258 N.W.2d 657, 659 (N.D.1977); In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).
*131 The district court's findings in this case that the land in question was purchased with money belonging to Justina Zundel, and that the intent of Joe and his mother was that Joe hold the land for the benefit of his mother and divide it on her death between her surviving children, is supported by substantial and competent evidence and thus is not clearly erroneous. The check used to pay for the land was drawn upon Justina's account. The circumstances under which the land was farmed, income retained, improvements made and taxes paid are consistent with an intent to create a trust. Also, circumstances existed which rebutted any presumption that the land was meant as a gift to Joe. Justina feared if title to the land was placed in her name she might again become liable on the original $12,000.00 mortgage. The fact the land had been foreclosed on only a few years before, together with testimony of the Zundel children, indicated Justina was not extremely wealthy at the time of the purchase as to be making sizeable gifts, but rather she was a business woman raising a family without benefit of a husband and engaged in the operation of a farm of which farmland would be a vital necessity. We also note the credibility of Joseph Zundel as a witness was shaken a number of times during his cross-examination. When the trial court weighed credibility of the witnesses and the inferences raised by the evidence, it could reasonably conclude the intent to create an implied trust was proved by clear and convincing evidence. Therefore, the trial court's determination on this issue is affirmed.
Joe next contended that Edwin was barred from bringing this action by the statute of limitations. Section 28-01-16, NDCC, provides an action upon an obligation, express or implied, must be commenced within six years after the cause of action has accrued. Joe argued the statute of limitations on this action started to run no later than 1964, i. e., the date of Justina's death, when neither the property nor the income therefrom was divided equally among the brothers and sisters. He argued that not only did the Zundel children not receive an accounting of their proportionate share of the income under the trust agreement but that also a dispute arose over the operation and division of the alleged trust land in 1964, according to the testimony of Edwin. We find pertinent on this issue the following language from Bogert, Trusts and Trustees (2d ed. 1962) § 952:
"Since trusts of this type are founded on the theory that the settlor intended and the trustee acquiesced in them, the normal holding of a trustee under the resulting trust should be deemed to be friendly until he does some act to contradict that supposition. The beneficiary should be entitled to rely on the assumption that the resulting trustee is holding him for and in subordination to his equitable interest, unless he receives contrary evidence by reason of an assertion by the trustee that he is holding for himself or for others than the cestui. The mere existence of such a trust, therefore, as in the case of an express trust, should not give rise to a cause of action in favor of the cestui, and should not be a reason for the running of any Statute of Limitations against him. Some act of denial of the trust or assertion of a hostile interest by the resulting trustee should be necessary to give the resulting cestui a cause of action and so to start the relevant Statute of Limitations running.
"The cases almost universally support this position regarding resulting trusts and the statute. Where the resulting trustee has taken no positive stand after his acquisition of title, his holding is deemed friendly, and subordinate to the equitable interest of the beneficiary, and no statute runs.
......
"If the resulting trustee repudiates his obligation, but later changes his attitude and recognizes the existence of a trust, such later conduct causes the statute to stop running." [Footnotes omitted.]
The statute of limitations does not begin to run in the case of a purchase money resulting trust such as the one in *132 this case until the trustee clearly repudiates his trust. Jirka v. Prior, 196 Neb. 416, 243 N.W.2d 754, 759 (1976); England v. Winslow, 196 Cal. 260, 237 P. 542, 546 (1925). See, Annot. 45 A.L.R.2d 382; 75 Am.Jur.2d Trusts §§ 588, 591, 593; Bogert, Trusts and Trustees (2d ed. 1962) § 952. Thus, the statute does not begin to run as long as there is a recognition of the trust, or a repudiation followed by a subsequent recognition by the trustee. Shirley v. McNeal, 274 Ala. 82, 145 So.2d 415, 419 (1962); Henslee v. Merritt, 263 Ala. 266, 82 So.2d 212, 215 (1955). Whether or not the trustee has repudiated his trust and the statute has begun to run must be determined upon the facts of each individual case. Jirka v. Prior, supra.
In this case the district court found that Joe did not repudiate the trust until 1977. We conclude the district court's finding is supported by substantial evidence and is not clearly erroneous. Consequently, the statute of limitations did not begin to run until that date. Testimony indicated Justina Zundel received all or part of the income from the land in issue until her death in 1964. Clearly there was no repudiation of the trust prior to Justina's death under those facts. Joe argued, however, that failure to make payments or divide the land to the four brothers and sisters who have received no income from the alleged trust property, was a repudiation of the trust, at least as to those persons. We disagree. Testimony indicated that following Justina's death, the parties disagreed as to how the land should be divided. A trustee's disagreement as to the manner of a division is not a repudiation when he recognizes a division should be made. Nor is a trustee's failure to disburse income or make an accounting to the beneficiaries necessarily a repudiation of the trust. The mere failure of a trustee to perform his duty is not sufficient to repudiate a resulting trust, rather there must be a distinct act of repudiation amounting to a denial of its existence. England v. Winslow, supra at 547.
In this case it appears the four Zundel children who did not receive any use or income from the real property following their mother's death, did not request nor necessarily desire an accounting. Apparently they relied on the word of their brothers that eventually a cash settlement would be made or else they simply were not concerned. In either instance, under the facts of this case, Joe's failure to make an accounting in the years following his mother's death cannot be said to be a clear repudiation when no request for an accounting was made. We also note that Edwin, as one of the beneficiaries, farmed the land following his mother's death, and Albert, as another beneficiary, resided on the land. Allowing the use of the land by two of the intended beneficiaries can hardly be considered a repudiation of the trust, at least as to those beneficiaries. Finally, the district court found that Joe stated in a conversation with his nephew, Loren, in April 1977, that the land was to be divided between the seven surviving Zundel children. His statement that the land was to be divided between himself and his brothers and sisters was a recognition or acknowledgment by Joe of the trust and started the statute of limitations to run anew even if there was a prior repudiation. Henslee v. Merritt, supra; White v. Chichester, 227 Miss. 426, 86 So.2d 341 (1956). The district court's finding that Joe did not repudiate the trust until 1977 and that the statute of limitations did not begin to run until that date is not clearly erroneous and is thus affirmed.
As the final issue on appeal, Joe contended the district court erred in not requiring an accounting be made by Edwin for the years he has been in possession of the trust property. Generally, a resulting trustee "should be required to account for the profits or rental value of the land from the date of its acquisition by him, and may be allowed the benefit of payments made by him on account of taxes, interest on a mortgage, repairs, improvements, and similar items." Bogert, Trusts and Trustees, (rev. 2d ed. 1977) § 465; Islas v. Islas, 213 Cal.App.412, 28 Cal.Rptr. 850 (1963); Meyer v. Meyer, 285 S.W.2d 694 (Mo.1956); Van Buskirk v. Van Buskirk, 148 Ill. 9, 35 N.E. 383 (1893); 76 Am.Jur.2d Trusts §§ 512-514.
*133 We conclude in this case that when Edwin, as one of seven beneficiaries, was in possession of property that should have properly been divided among all the beneficiaries at the time of Justina's death, he should be subject to an accounting for the period of his possession since Justina's death. See, Boehmer v. Silverstone, 95 Or. 154, 186 P. 26 (1920); McBride v. McIntyre, 91 Mich. 406, 51 N.W. 1113 (1892).
A trial court's order refusing to alter or amend a judgment will not be set aside on appeal except for an abuse of discretion. Porter v. Porter, 274 N.W.2d 235 (N.D.1978); Hefty v. Aldrich, 220 N.W.2d 840 (N.D.1974). The judgment of the district court ordered payment be made to Joe in the amount of $2,788.37 for unreimbursed insurance premiums and real estate taxes paid by Joe. Joe has failed to demonstrate on appeal that this amount for unreimbursed insurance premiums and real estate taxes was in error or that the trial court's denial of his motion to amend as to these payments was an abuse of discretion. We do, however, agree with Joe that the failure of the trial court to order an accounting of income from the property from the time of Justina's death to date was an abuse of discretion. Such an accounting of profits, however, should not be limited solely to Edwin. We note testimony at trial indicated Edwin made crop share payments to Joe since their mother's death although not on a regular basis. The payments received by Joe may constitute profit from the trust property and thus should be included in the accounting. We further note Albert has resided on and made use of part of the trust property and such a use of the property since his mother's death may constitute a profit as to also subject Albert to the accounting.
Accordingly, this case is remanded for modification of the district court judgment to provide for an accounting of profits and, as so modified, is affirmed.
ERICKSTAD, C. J., and PAULSON, PEDERSON and VANDE WALLE, JJ., concur.
NOTES
[1] Section 59-01-06, NDCC, sets forth four instances in which an implied trust may arise, and provides as follows:
"An implied trust arises in the following cases:
"1. One who wrongfully detains a thing is an implied trustee thereof for the benefit of the owner;
"2. One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an implied trustee of the thing gained for the benefit of the person who would otherwise have had it;
"3. Each one to whom property is transferred in violation of a trust holds the same as an implied trustee under such trust, unless he purchased it in good faith and for a valuable consideration;
"4. When a transfer of real property is made to one person and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made." | 01-03-2023 | 10-30-2013 |
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