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https://www.courtlistener.com/api/rest/v3/opinions/1657924/ | 351 So.2d 1224 (1977)
Donald H. McGREGOR, Individually and as administrator of the estate of his minor son, Robert T. McGregor
v.
UNITED FILM CORPORATION et al.
No. 11088.
Court of Appeal of Louisiana, First Circuit.
September 19, 1977.
Rehearing Denied November 21, 1977.
*1226 Joseph A. Gladney, Baton Rouge, of counsel for Donald H. McGregor, plaintiff-appellant.
Charles R. Moore, Baton Rouge, of counsel for Indv., etc., plaintiff-appellant.
Neil H. Mixon, Jr., Baton Rouge, of counsel for United Film, Telefilms & Anthony Favaro, defendants-appellees.
William N. Faller, Baton Rouge, of counsel for Guaranty Corp. and Guaranty Bond & Finance Corp., defendants-appellees.
William A. Norfolk, Baton Rouge, of counsel for Guaranty Broadcasting Corp. and The Travelers Ins. Co., defendants-appellees.
Before LANDRY, COLE and CLAIBORNE, JJ.
CLAIBORNE, Judge.
This is a workmen's compensation claim brought by Donald H. McGregor individually and on behalf of his minor son, Robert T. McGregor, who was seriously injured in an automobile accident on September 14, 1968. After young McGregor reached the age of majority he was substituted as a party plaintiff insofar as his personal claims were concerned.
In the early morning hours on that day, Robert McGregor was traveling alone from Hammond, Louisiana to Baton Rouge, in an automobile owned by the Guaranty Broadcasting Company, when the vehicle, for unexplained reasons, overturned in a ditch. Prior to the accident he had delivered, in connection with his employment, motion picture film which had been processed during the night by United Film Corporation employees.
As a result of this accident, the plaintiff sustained serious back injuries requiring surgery and an extended period of convalescence. Liberty Universal Insurance Company, the workmen's compensation insurer of United Film, began paying the statutory weekly benefits and did so for 98 weeks, in addition to certain medical expenses; however, it then became insolvent and has been placed in liquidation. After the accident, Telefilms, Inc. also contributed some financial assistance to the claimant during his recovery period.
This litigation began shortly after the insolvency of Liberty Universal became known. Made defendants on varying theories of responsibility are United Film and its principal shareholder, Anthony H. Favaro, Telefilms, Guaranty Broadcasting Corporation, Travelers Insurance Company, Guaranty Corporation, Louisiana Insurance Guaranty Association, and Tom I. McFarling, as liquidator of Liberty Universal Insurance Company. The suit as to Louisiana Insurance Guaranty Association was dismissed by summary judgment from which no appeal was taken.
After a lengthy trial, which included additional testimony and evidence on behalf of the defendants taken on reopening of the case for such additional evidence, judgment was rendered awarding the plaintiff total and permanent disability benefits and penalties and attorney's fees against United Film only, the suit being dismissed as to the remaining defendants.
The extent of the plaintiff's disability is the initial question raised on appeal. That issue is the subject of considerable controversy and is not free from difficulty. At the trial, Dr. F. C. McMains, an orthopedic surgeon who treated McGregor, testified that he performed a laminectomy and spinal fusion to correct plaintiff's back injuries but as a result of these injuries, there was a permanent residual disability of 50 per cent, *1227 and that driving an automobile for any sustained period of time would cause McGregor pain and discomfort. Dr. Thomas B. Flynn, a neurosurgeon who also treated the plaintiff, agreed with that conclusion.
The issue was complicated by certain conflicting statements made by the plaintiff in connection with litigation pending in his behalf in California. As a result of a subsequent fall in 1972 on a cruise ship on which he was employed, a suit captioned "Robert McGregor v. Pacific Far East Line, Inc." was filed in the United States District Court for the Northern District of California. Certain statements made by him in connection with that litigation are in conflict with his testimony here. More particularly, he testified at length in the trial of the instant case as to the continued physical difficulties resulting from the automobile accident and yet he made several assertions incidental to the California suit which indicated that he had no residual problems whatsoever from the accident in Louisiana.
The trial court considered this conflict at length in its thorough and well-reasoned opinion and concluded that the plaintiff was totally and permanently disabled under our workmen's compensation statute. In that regard, the Court observed:
" . . . Notwithstanding the inconsistencies and prevarications in McGregor's own testimony, and despite his alleged contrary position taken in out-of-state litigation, the medical testimony establishes that plaintiff is totally and permanently disabled under the Louisiana Workmen's Compensation Act. . . ."
We are persuaded that that conclusion should not be disturbed. It is the function of the trier of facts to ascertain the truth from all the evidence before it. Naturally, having found that the plaintiff was untruthful the Court was free to reject all or any part of his testimony. The trial judge's findings on the issue of disability are not manifestly erroneous, particularly in view of Dr. McMain's testimony which convincingly establishes the major disability which McGregor still has and which verified that the plaintiff can no longer do that work which he was doing on the night of the accident without pain and discomfort.
The plaintiff contends that we should disregard the corporate status of United Film and render judgment against Favaro personally. The trial judge explored the jurisprudence of this state concerning the "alter ego" theory of responsibility and rejected that argument on the ground that the close relationship between Favaro and United Film, stock transfers subsequent to the accident, and delivery of corporate assets to another corporation (Telefilms) in which Favaro was interested were not motivated by fraud. In the case of Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So.2d 265 (La.App. 2nd Cir. 1969) which is representative of cases considering this question, the Court noted:
"A general exception to the rule of nonliability of shareholders and officers for corporate obligations is recognized where the shareholder or officer has practiced fraud upon a person through the corporation or upon the corporation itself. LSA-R.S. 12:95.
"Other exceptions to these rules of nonliability of a shareholder for corporate debts have been recognized where the stockholder is the alter ego of the corporation. For the doctrine of an alter ego to apply, it must be shown that the stockholder whose individual and personal liability for a corporate debt is sought disregarding the entity of the corporation and, thus, made the corporation a mere agency for the transaction of his own private business. Thus, the separate individualities of the corporation and its stockholders must have ceased to exist. Brown v. Benton Creosoting Co., Inc., 147 So.2d 89 (La.App. 2d Cir. 1962cert. denied).
"The doctrine of alter ego does not create assets in a corporation but it simply fastens liability on an individual who uses the corporation merely as an instrumentality in conducting his own personal business. Liability in such instances springs from fraud perpetrated not necessarily on the corporation itself but upon *1228 third persons dealing with the corporation. Shreveport Sash and Door Company v. Ray, 159 So.2d 434, 437 (La.App. 2d Cir. 1963). . . .
"The fact that one owns a majority of stock in a corporation does not of itself make him liable for the corporate debts. So long as the corporate existence is maintained, immunity from liability of even a sole stockholder is the same as if there are many stockholders. Buckeye Cotton Oil Co. v. Amrhein, 168 La. 139, 121 So. 602 (1929); Johnson v. Kinchen, 160 So.2d 296 (La.App. 1st Cir. 1964); 18 C.J.S. Corporations §§ 580, 581, pp. 1306-1308. Except under circumstances whereby a shareholder becomes individually liable for corporate debts through fraud, deceit, or ill practices, the shareholder is within his rights to limit his obligation by the amount of and to the extent of his subscription for capital stock. He may properly say, `Thus far I will go but no furtherI will risk the amount paid for my stock, but no more.'" (emphasis added).
The plaintiff primarily relies upon an agreement of January 14, 1969, in which Favaro bought out the interest of Guaranty Bond & Finance Company, Inc., in United Film. Lengthy documentation of other corporate business dealings between United Film and the Guaranty Group was also introduced by the plaintiff. None of the evidence indicates that Favaro used the corporate entity for his personal affairs at the time of the accident nor is there any proof of fraudulent conduct on the part of the shareholders. To the contrary, the buy-sell agreement was entered into at a time when McGregor was being paid compensation benefits which he continued to receive until July 31, 1970. There is no allegation or proof of fraud as to Favaro. Therefore, the reservation of rights of action for fraud contained in LSA-R.S. 12:95 is inapplicable.
Plaintiff contends, however, that Favaro is liable under the provisions of LSA-R.S. 12:93 D, as a stockholder who has received unlawful dividends or other unlawful distribution of assets. The facts in this regard are that subsequent to the accident but prior to the financial failure of Liberty, Guaranty Corporation, majority stockholder of United Film, entered into the contract with Favaro, the minority stockholder, whereby the latter purchased all of the stock owned by Guaranty Corporation in United Film for the price of $40,000. Favaro delivered his promissory note for the purchase price and pledged the stock to the seller to secure the debt. By agreement United Film continued to process film for Guaranty Broadcasting Corporation, a solely owned subsidiary of Guaranty Corporation, and all sums due to United Film for such services were paid by Guaranty Broadcasting Corporation to Guaranty Corporation in payment of Favaro's note, which was eventually paid in full. In effect, therefore, the rights and credits of United Film Corporation were diverted and distributed to its only stockholder. United Film was eventually allowed to become dormant and was so declared formally by resolution of its board. Such a distribution of corporate assets was unlawful, and rendered Favaro liable to the creditors of United Film "in an amount not exceeding the amount so received by him" under the provisions of LSA-R.S. 12:93 D. It may be argued that the action of creditors under LSA-R.S. 12:93 D does not apply to unliquidated claims, and therefore, that such an action cannot be cumulated with a suit for workmen's compensation. However, the statute makes no distinction between liquidated and unliquidated debts, and where the law does not distinguish, courts of law ought not to distinguish. A workmen's compensation claimant or tort claimant is a creditor although his claim may not have been reduced to judgment. It is well settled that a money judgment does not create a debt; it only recognizes the obligation and makes it executory. Bailey v. Louisiana & N. W. R. Co., 159 La. 576, 105 So. 626 (La.1925); Lalanne v. Payne, 42 La.Ann. 152, 7 So. 481 (La.1890). The general definition of a creditor and a debtor is found in LSA-C.C. Art. 2132:
He who is bound to do, or not to do, or to give, is indifferently called the obligor, or *1229 the debtor; and he to whom the obligation is made is in like manner without distinction called the obligee or the creditor. (Emphasis added).
As a workmen's compensation claimant, plaintiff was a creditor of the corporation (United Film), and as a shareholder in receipt of an unlawful distribution of corporate assets, Favaro is liable with his corporation to the plaintiff to the extent of the unlawful distribution received. This liability is further limited by the peremption provisions of the statute, under which the action to enforce the liability must be brought within two years from which the unlawful distribution was received. Favaro was not joined as a party defendant until October 30, 1973. Therefore any distributions unlawfully received by him prior to October 30, 1971, would be perempted. A total of nine payments were received by Favaro after that date (from December 7, 1971 to September 12, 1972) for a total of $17,002.15.
The plaintiff asserted the following case against Guaranty:
"Plaintiff hereby makes Guaranty Bond and Finance Company, Inc., now known as Guaranty Corporation, an additional party defendant herein, and further alleges that because of the facts alleged hereinabove, as well as the facts alleged hereinbelow, the court should disregard the corporate entity of United and `pierce the veil' of corporateness of United and hold its principal stockholder, Guaranty Bond and Finance Company, Inc., now known as Guaranty Corporation, liable to plaintiff for all sums sued for herein on the additional grounds that as of September 14, 1968:
1. Guaranty, the parent corporation, owned approximately seventy-five (75%) per cent of the stock of United;
2. Guaranty financed United frequently by making advances of funds to United to meet its routine business expenses;
3. United had grossly inadequate capital with which to meet its foreseeable obligations;
4. United had very little business with persons other than its parent corporation, Guaranty;
5. Guaranty, the parent corporation, used the property, business and employees of the subsidiary, United, as its own;
6. The officers and directors of United did not operate United by independent action in the interest of United, but rather took their orders from the parent corporation, Guaranty, in Guaranty's interest;
7. The financial books and records of United were kept by and commingled with the books and records of the parent, Guaranty;
8. There existed such a unity of interest and ownership that the individuality or separateness of United and Guaranty had ceased, and for all practical purposes they were and should be treated as one corporate entity;
9. United was the alter ego of Guaranty."
As previously discussed courts will not strip a principal stockholder of the shield of personal immunity from liability for corporate obligations except on the necessary showing of fraud or other misconduct. Sampay v. Davis, 342 So.2d 1186 (La.App. 1st Cir. 1977). Limited or inadequate capitalization does not of itself indicate fraud or raise any presumption of fraud, deceit or ill practices on the part of a stockholder. Sampay v. Davis, supra; Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So.2d 265 (La.App. 2nd Cir. 1969). No fraud was alleged or proven with respect to either of the Guaranty Corporations.
Plaintiff further seeks recovery against the solvent defendants by alleging that at all pertinent times he "was an employee of and was under the joint control of all defendants. . . ." There is absolutely no proof that McGregor was ever employed by any of the Guaranty corporations.
The facts as to Telefilms require close scrutiny. United Film and Telefilms were separate corporations. At the time of the accident Favaro owned one-fourth interest *1230 in the former while Guaranty owned seventy-five per cent (which it subsequently sold to Favaro as previously discussed). Favaro owned one-third of the stock of Telefilms, in which the Guaranty corporations owned no stock. Both corporations had their offices in a building belonging to Favaro, and Favaro apparently ran the day-to-day operations of both companies. United Film was a film processing company, while Telefilms, at that time, was engaged in filming athletic events. (At a subsequent time as United Film became less active because of a lack of equipment for color processing, Telefilms also undertook to process films). Corporate records were separately maintained. Significantly, however, their personnel and business ventures were closely interrelated. McGregor sometimes worked for one corporation and sometimes for the other. His immediate superior and paymaster in both cases was Favaro. His duties involved driving to an athletic event, helping to film the game, returning with the film for processing, and then delivering the processed film to the customer. According to the corporate arrangement, part of this workthe filmingwas for one corporation, and the other partthe delivery of processed filmwas for another. Plaintiff received one payment for his work, and apparently no effort was made to allocate his wages. He believed United Film and Telefilms were identical. Telefilms provided him with a hospital bed at home after his injury, while United Film's insurer paid workmen's compensation.
On the evening of the accident, McGregor and Morris Lucia, a principal stockholder in Telefilms, had gone to New Orleans where they filmed a high school football game. They returned to the joint corporate offices at 1738 Wooddale Boulevard via Hammond where they picked up other film to be processed that night. The film was developed by employees of United Film, and at 2:30 a. m. plaintiff was sent back to Hammond to make delivery of the processed film. The accident occurred on the return trip. The entire operation was in essence a joint venture of United Film and Telefilms financially beneficial to both corporations which shared their employees. The operations were totally interdependent since the taking of films was useless to their customers unless the films were subsequently processed and delivered. Evidence indicated that immediate processing and prompt delivery were essential to the service provided.
In Babineaux v. Southeastern Drilling Corporation, 170 So.2d 518 (La.App. 3rd Cir. 1965) the court cited with approval the following quotation from Malone, Workmen's Compensation Law (1951), Section 58, pp. 66-67:
"Where `the employee is subject to the joint control of several employers at the same time and for the same work, he is entitled, if injured, to subject them all to his compensation claims. * * * If the work being done at the time of the accident was in furtherance of a joint enterprise shared by all employers, so that each of them had a direct financial interest in the entire job, we are presented with a case of partnership or joint enterprise liability. * * * It is not necessary, that each partner or joint venturer personally control the work of the injured employee. It is sufficient that they are engaged in a common enterprise that contemplates the employment and control of the claimant by one of the interested parties for the benefit of all. * * *'." (Emphasis added by this Court).
See also Guilbeau v. Liberty Mutual Insurance Company, 324 So.2d 571 (La.App. 1st Cir. 1975) affirmed on this point in 338 So.2d 600 (La.1976).
As a result of the joint enterprise both employers are liable to the employee for workmen's compensation.
The district court was correct in assessing penalties and attorneys' fees with the following explanation:
"The court finds that plaintiff is entitled to the attorneys' fees and penalties provided for in LSA-R.S. 23:1201.2, because at the time of the discontinuance, the employer failed to pay for no better reason than the fact that his compensation insurer became insolvent. The failure to continue payments within a reasonable time after notice was without probable cause on the *1231 part of" the employer. The court properly rejected consideration of the second accident as justification for nonresumption of payments in view of the fact that the employer had no knowledge of the second accident and was not motivated thereby in suspending payments.
The judgment of the district court is affirmed insofar as it awards plaintiff total and permanent workmen's compensation benefits, subject to credit for compensation previously paid, together with penalties and attorneys' fees, and medical expenses, against United Film. It is reversed insofar as it dismisses the suit as to Telefilms, Inc., and Anthony Favaro individually, which defendants are hereby cast, in solido with United Film, liability of Anthony Favaro being limited to $17,002.15.
It is ordered, adjudged and decreed that the judgment of the trial court be amended to include judgment against defendants United Film, Telefilms, Inc. and Anthony Favaro in solido, liability of Anthony Favaro individually being limited to the sum of $17,002.15. All costs to be assessed against defendant United Film, Telefilms, Inc. and Anthony Favaro. The judgment of the district court dismissing the suit as to all other defendants is affirmed.
Affirmed in part, reversed in part and rendered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2511845/ | 234 P.3d 1105 (2010)
2010 UT 45
SALT LAKE COUNTY, a political subdivision of the State of Utah, Plaintiff and Appellee,
v.
HOLLIDAY WATER COMPANY, a Utah corporation, Defendant and Appellant.
No. 20080522.
Supreme Court of Utah.
June 11, 2010.
*1107 Lohra L. Miller, T.J. Tsakalos, Craig W. Anderson, Salt Lake City, for plaintiff.
Wallace T. Boyack, Paul H. Ashton, Salt Lake City, for defendant.
NEHRING, Justice:
INTRODUCTION
¶ 1 Holliday Water Company appeals the district court's grant of summary judgment in favor of Salt Lake County, which requires Holliday Water to fluoridate its water supply in compliance with Salt Lake Valley Health Department's Regulation 33 (as amended).
¶ 2 While these proceedings were pending, the Utah State Legislature passed Senate Bill 29, amending Utah Code section 19-4-111 to exempt "corporate public water systems" from having to comply with Regulation 33. Holliday Water, contending it is a corporate public water system as defined by the new statute, filed a Notice of Suggestion of Mootness, arguing that the 2009 amendments moot this appeal.
¶ 3 Because we find that the 2009 amendments to section 19-4-111 moot this case, we vacate the decision of the district court and remand with instructions to dismiss the complaint as moot. However, we also hold that to the extent Salt Lake County and Holliday Water entered an enforceable contract before the 2009 amendments took effect, the 2009 amendments will not apply retroactively to displace the terms of that contract.
BACKGROUND
¶ 4 The Utah Safe Drinking Water Act, originally passed in 1953, prohibits the addition or removal of fluorine[1] to "public water supplies, whether state, county, municipal, or district," unless a majority of voters in the affected area vote in favor of such an action in an election. See Utah Code Ann. § 19-4-111(2)(a) (Supp.2009).
¶ 5 In November 2000, Salt Lake County held a general election that included a ballot question regarding whether fluoride should be added to public water systems in Salt Lake County. A majority of registered voters *1108 approved the ballot initiative, thus requiring the addition of fluoride to the public water systems in Salt Lake County. After the vote, the Salt Lake Valley Health Department drafted Regulation 33, which mandated fluoridation of all "regulated public water systems" in Salt Lake County by October 1, 2003. The Salt Lake Valley Board of Health subsequently amended Regulation 33 in 2005 to exempt "functionally separate" water systems from the fluoridation requirement.
¶ 6 Holliday Water Company, a registered Utah corporation in Salt Lake County, declared itself to be a functionally separate water system and exempt from Regulation 33, as amended. In response, Salt Lake County filed a complaint against Holliday Water seeking a declaratory judgment ruling that due to its interconnections with Salt Lake City, Holliday Water is not a functionally separate water system and is required to comply with Regulation 33.
¶ 7 Holliday Water filed an answer and counterclaim, seeking a declaration that it is a functionally separate water system under the amended regulation. Salt Lake County moved for summary judgment. At the same time, Holliday Water filed a Motion for Declaratory Judgment asserting Utah Code section 19-4-111 and Regulation 33 do not apply to it.
¶ 8 In a memorandum decision, the district court granted Salt Lake County's motion for summary judgment and denied Holliday Water's motions. The district court found that under the plain language of the statute, along with Regulation 33, Holliday Water is not functionally separate because it is a public system that has interconnections with Salt Lake City, it is not independent of any other water system, and it provides water service to retail customers.
¶ 9 Holliday Water appealed the district court's grant of summary judgment in favor of Salt Lake County and the denial of Holliday Water's Motion for Declaratory Judgment on the application of Utah Code section 19-4-111.
¶ 10 While these proceedings were pending before our court and in response to the lobbying efforts of Holliday Water, the Utah State Legislature passed Senate Bill 29, amending section 19-4-111 of the Safe Drinking Water Act to expressly exempt from compulsory fluoridation those "corporate public water systems" whose shareholders oppose adding the chemical. Safe Drinking Water Act Amendments, ch. 371 § 1, 2009 Utah Laws 2029-30. Under the amended statute, a corporate public water system is defined as "a public water system that is owned by a corporation engaged in distributing water only to its shareholders." Utah Code Ann. § 19-4-111(1)(a).
¶ 11 In response to the new legislation and pursuant to rule 37 of the Utah Rules of Appellate Procedure, Holliday Water filed a Notice of Suggestion of Mootness, arguing that because it is a corporate public water system as defined in the new version of the statute, Salt Lake County has no authority to compel Holliday Water to fluoridate its water supply.
¶ 12 Salt Lake County filed a response to Holliday Water's Notice of Suggestion of Mootness arguing, among other things, that Senate Bill 29 is not retroactive and does not apply to this case.
¶ 13 We called for supplemental briefing on the mootness issue. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j) (2009).
STANDARD OF REVIEW
¶ 14 We review a summary judgment determination "for correctness, granting no deference to the [district] court's legal conclusions." Hansen v. Am. Online, Inc., 2004 UT 62, ¶ 6, 96 P.3d 950. "[W]e determine only whether the [district] court erred in applying the governing law and whether the [district] court correctly held that there were no disputed issues of material fact." Kouris v. Utah Highway Patrol, 2003 UT 19, ¶ 5, 70 P.3d 72.
¶ 15 "An appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect." State v. Laycock, 2009 *1109 UT 53, ¶ 12, 214 P.3d 104 (internal quotation marks omitted).
ANALYSIS
¶ 16 Although the parties characterize their arguments in several ways, this appeal concerns one central question: Is Holliday Water required to add fluoride to its water supply? To answer this question, we must resolve three subsidiary issues: (1) Does Senate Bill 29, which amended Utah Code section 19-4-111 to exempt "corporate public water systems" from the fluoridation requirement, apply to this appeal? (2) If Senate Bill 29 does apply, is Holliday Water a "corporate public water system" as defined by the amended statute, and thus statutorily exempt from the fluoridation requirement?[2] (3) If Holliday Water qualifies for the "corporate public water system" exemption, could Holliday Water still be required to fluoridate its water supply under the terms of a contract entered into before the amendments were passed?
¶ 17 We conclude that Senate Bill 29 applies to this appeal and Holliday Water meets the definition of a "corporate public water system" under Utah Code section 19-4-111, as amended. Although this means Holliday Water has no statutory obligation to fluoridate its water supply, we also hold that to the extent Holliday Water entered into an enforceable contract with Salt Lake County before the statute was amended, Holliday Water may still be bound to comply with that contract's terms.
I. SENATE BILL 29 APPLIES TO THIS APPEAL
¶ 18 A "[t]hreshold question[] in any case on appeal [is] whether there is an actual controversy." State v. Lane, 2009 UT 35, ¶ 15, 212 P.3d 529. Thus, the first question we must answer is whether Senate Bill 29, which amended Utah Code section 19-4-111 to add an exemption for corporate public water systems, applies to this appeal.[3]
¶ 19 Largely as a result of Holliday Water's lobbying efforts, Utah Code section 19-4-111 was amended in the 2009 Utah State Legislative session. See Safe Drinking Water Act Amendments, ch. 371 § 1, 2009 Utah Laws 2029-30. Holliday Water contends that the new amendments to Utah Code section 19-4-111 apply to this appeal and moot the controversy between the parties.
¶ 20 Salt Lake County disagrees, arguing the amended section 19-4-111 does not moot this appeal because it does not apply retroactively to obligations that existed before the legislative amendments were passed. Thus, according to Salt Lake County, the prior version of the statute applies, and under that language, a controversy still remains.
¶ 21 We agree with Holliday Water on this point. "The burden of persuading the court that an issue is moot `lies with the party asserting mootness.'" See Cedar Mountain Envtl. Inc. v. Tooele County, 2009 UT 48, ¶ 26, 214 P.3d 95 (Durrant, J., dissenting) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). "[M]ootness can be determined by facts that change or develop as the suit is pending." Id. Indeed, "[l]egislation can often moot a civil case, even where the legislation passes after the events have transpired in the case." Salt Lake City v. Tax Comm'n, 813 P.2d 1174, 1177 (Utah 1991); see also Berning v. A.G. Edwards & Sons, Inc., 990 F.2d 272, 277 (7th Cir.1993) (citing United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801)) (recognizing the Supreme Court's long-standing recognition of the principle that Congress may impose new legal rules to pending cases).
¶ 22 We find that Holliday Water has met its burden to demonstrate mootness. Although Salt Lake County is correct that the 2009 amendments to Utah Code section 19-4-111 *1110 do not apply retroactively and thus cannot alter contractual rights that existed before their enactment (see infra Part III), Utah Code section 19-4-111 is the current law, and it prospectively governs the obligations of water companies to add fluoride to their water supplies. The 2009 amended version of this section provides:
19-4-111 Fluori[d]e added to or removed from waterElection or shareholder vote required
...
(2)(a) Except as provided in Subsection (7) or Subsection 19-4-104(1)(a), public water supplies, whether state, county, municipal, or district, may not have fluori[d]e added to or removed from the water supply without the approval of a majority of voters in an election in the area affected.
...
(3) If a majority of voters on an opinion question under Subsection (2)[] approve the addition of fluori[d]e or the removal of fluori[d]e from the public water supplies within the county, the local health departments shall require the addition of fluori[d]e to or the removal of fluori[d]e from all public water supplies within that county other than those systems:
(a) that are functionally separate from any other public water systems in that county;
...
(7) (a) A supplier may not add fluori[d]e to or remove fluori[d]e from a corporate public water system unless the majority of the votes cast by the shareholders of the corporate public water system authorize the supplier to add or remove the fluori[d]e.
(b) If a corporate public water system's shareholders do not vote to add fluori[d]e under Subsection (7)(a), the supplier shall annually provide notice to a person who receives water from the corporate public water system of the average amount of fluori[d]e in the water.
Utah Code Ann. § 19-4-111 (Supp.2009) (emphasis added).
¶ 23 The statute defines a "corporate public water system" as "a public water system that is owned by a corporation engaged in distributing water only to its shareholders." Id. § 19-4-111(1)(a). Under this statute, if an entity demonstrates it is a corporate public water system, the authority to make the decision to fluoridate or not fluoridate its water supply is vested in the shareholders of that entity not the voters of the corresponding county. See id. § 19-4-111(7)(a). Although individuals other than shareholders may be the primary consumers of the company's water, the decision to fluoridate does not belong to them; it belongs to the shareholders. Thus, the next question we must answer is whether Holliday Water is a corporate public water system as defined by the amended statute.
II. HOLLIDAY WATER IS A "CORPORATE PUBLIC WATER SYSTEM" AS DEFINED BY UTAH CODE SECTION 19-4-111(1)(a)
¶ 24 The parties vigorously dispute whether Holliday Water meets the definition of a "corporate public water system" under Utah Code section 19-4-111(1)(a) (Supp. 2009). Holliday Water believes that it is so obvious that it qualifies as a corporate public water system, that it asks us to take judicial notice of this as a fact. In support of taking judicial notice of its status, Holliday Water directs us to: (1) a statement we made in Holliday Water Co. v. Lambourne, 24 Utah 2d 97, 466 P.2d 371 (1970), (2) a definition from the Utah Safe Water Drinking Act, and (3) a letter from the Public Service Commission. Holliday Water next asserts that even without taking judicial notice of its status, we should conclude that Holliday Water falls squarely within the definition of a corporate public water system under the plain language of the statute.
¶ 25 Salt Lake County disagrees. First, the County argues that under Utah Rule of Evidence 201 we cannot take judicial notice of a record in a different case or proceeding, or of a fact in dispute. Next, the County argues that Holliday Water does not meet the definition of a corporate public water system under the plain language of the statute.
*1111 ¶ 26 We decline to take judicial notice that Holliday Water is a corporate public water system. Instead, we conclude that this issue is best resolved by means of statutory interpretation.
¶ 27 When interpreting statutes, "we look first to the plain language of the statute," and give effect to that language unless it is ambiguous. Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 520 (Utah 1997). In doing so, "our primary goal is to evince the true intent and purpose of the Legislature." State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276 (internal quotation marks omitted).
¶ 28 Utah Code section 19-4-111(1)(a) defines a "corporate public water system" as "a public water system that is owned by a corporation engaged in distributing water only to its shareholders." There is no dispute that Holliday Water is a corporation that operates a public water system. Rather, the parties' disagreement over the statute centers on whether Holliday Water distributes water only to its shareholders.
¶ 29 Holliday Water distributes water to shareholders through "connections" or "meters." Once the water is distributed, the shareholders are then free to use or redistribute the water as they desire. They are free to provide water to nonshareholders, whether family, renters, or strangers.
¶ 30 Although Salt Lake County concedes that Holliday Water distributes water only to meters associated with its shareholders, Salt Lake County contends that because water from those meters may eventually find its way to nonshareholders and other retail customers, Holliday Water does not qualify as a corporate public water system.
¶ 31 The County's argument is unpersuasive. The phrase "engaged in distributing water only to its shareholders" is clear and unambiguous; we therefore need not expand our search for meaning beyond the text of the statute.[4]World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994) ("Only when we find ambiguity in the statute's plain language need we seek guidance from the legislative history and relevant policy considerations.") Under the plain language of the statute, a corporation operating a public water system satisfies the definition of a corporate public water system so long as the corporation's water is delivered exclusively to the shareholders of the corporation. How, where, and to whom the water travels after it is in the shareholders' possession is of no consequence.[5] Because it is undisputed that Holliday Water distributes water only to meters assigned to *1112 its shareholders, we hold that Holliday Water qualifies as a corporate public water system under the amended statute and that it has no statutory obligation to fluoridate its water supply.
¶ 32 Having determined that Holliday Water meets the definition of a corporate public water system under the statute, we now address Salt Lake County's argument that Holliday Water must comply with Regulation 33 notwithstanding the application of the amendments to Utah Code section 19-4-111.
III. HOLLIDAY WATER MAY STILL BE BOUND BY A PREEXISTING CONTRACT TO COMPLY WITH SALT LAKE VALLEY HEALTH DEPARTMENT'S REGULATION 33
¶ 33 Salt Lake County argues that notwithstanding the amendments to Utah Code section 19-4-111, Holliday Water may still be required to fluoridate its water supply under an express agreement it made with the County before section 19-4-111 was amended. Salt Lake County renews its argument that the new statute should not apply retroactively to invalidate contracts that were in force before the amendments were passed.[6]
¶ 34 In contrast, Holliday Water asserts that every Utah contract is entered into with the knowledge that "the State Legislature can, in the exercise of its police powers, pass laws reasonably necessary to secure the health, safety, and general welfare of the community regardless of whether such laws or regulations affect contracts incidentally, directly or indirectly." Holliday Water argues that any agreement it may have entered into with the County is subject to current law, and thus, even if Holliday Water agreed to fluoridate its water supply by express contract or otherwise, to require Holliday Water to comply with that promise now would be to force it to commit an "illegal act."
¶ 35 While it is true that when a legislative enactment renders preexisting contract terms illegal the contract may be deemed unenforceable; it is also true that preexisting contracts at odds with new legislation will not automatically be deemed invalid. Rather, we must conduct a balancing test to determine whether "the interest in [enforcing the contract] is clearly outweighed ... by a public policy against the enforcement of such terms." Restatement (Second) of Contracts § 178 (1981); see also 15 Corbin on Contracts, § 89.16 (1993).
A. The 2009 Amendments to Utah Code Section 19-4-11l Do Not Automatically Invalidate Preexisting Contract Obligations
¶ 36 "Despite the general rule that every contract in violation of [the] law is void, the fact that a contract serves a prohibited purpose does not necessarily make the contract unenforceable." Peterson v. Sunrider Corp., 2002 UT 43, ¶ 39, 48 P.3d 918 (internal quotation marks and citations omitted). "[T]he court must then determine whether [the] statute or public policy demands that the contract be held unenforceable." Id. In doing so, a court should "look at the over-all picture ... and determine upon the facts of the individual case whether the ends of justice demand that relief be granted." McCormick v. Life Ins. Corp. of Am., 6 Utah 2d 170, 308 P.2d 949, 952 (1957). This analysis includes both an identification of the purpose of enforcing the new legislation, as well as the public policy of preserving the freedom to contract. See 15 Corbin on Contracts, § 79.4 (1993) ("[C]onclusions on enforceability" are made "by weighing the particular public policy at issue against the damage that the freedom of contract may suffer if the court does not enforce the contract.").
¶ 37 The 2009 amendments to section 19-4-111 are irrelevant to the protection of the health, safety, and welfare of the citizens in Salt Lake County. Instead, the purpose of the 2009 amendments is to shift the decision to add or discontinue the addition of fluoride to a water system from the citizens in the affected area to the shareholders who own the water system. See Utah Code Ann. § 19-4-111(7)(a). This shift in political power *1113 does not establish a legislative preference for fluoridation, but rather a policy of granting corporate public water systems the autonomy and power to make their own fluoridation decisions.
¶ 38 Unless Holliday Water lacked the power to enter into the alleged contract before these amendments were passed, its decision to enter an agreement with the County was also an exercise of its autonomy. To the extent that the enforcement of contracts does not clearly contravene public rights or the general welfare, it is the function of this court to enforce and maintain contracts rather than to enable parties to avoid their contractual obligations. See Baltimore & Ohio Sw. R. Co. v. Voigt, 176 U.S. 498, 505, 20 S.Ct. 385, 44 L.Ed. 560 (1900); DeVetter v. Principal Mut. Life Ins. Co., 516 N.W.2d 792, 794 (Iowa 1994) ("For a court to strike down a contract on [public policy] grounds, it must conclude that the preservation of the general public welfare imperatively... demands invalidation so as to outweigh the weighty societal interest in the freedom of contract.").
¶ 39 Passing a law that allows shareholders to vote against the addition of fluoride to drinking water is irrelevant to public safety because it neither mandates nor prohibits the fluoridation of water. Therefore, freely entered contracts, legal when executed, that implement fluoride practices in a manner made illegal by the amended version of section 19-4-111 will not be displaced.
¶ 40 Because we have concluded that no overriding public policy interest prevents enforcement of an alleged preexisting contract, we now turn to the question of whether the 2009 amendments should apply retroactively to govern preexisting private contracts that may have been entered in this case. We are persuaded by Salt Lake County's argument that the 2009 amendments should not invalidate any preexisting contract between the parties.
B. The 2009 Amendments Will Not Apply Retroactively to Invalidate Any Preexisting Contract
¶ 41 As a general rule, we apply the version of the statute in effect "at the time of the events giving rise to [the] suit." Taghipour v. Jerez, 2002 UT 74, ¶ 5 n. 1, 52 P.3d 1252. Indeed, the Utah Code expressly restricts retroactive application of legislative changes by stating "[n]o part of these revised statutes is retroactive, unless expressly so declared." Utah Code Ann. § 68-3-3 (2008). When no such declaration of retroactive application is present in a legislative amendment, we must apply the statute in effect at the time of the controversy unless one of two exceptions apply: (1) the legislative change merely "clarif[ies] the meaning of an earlier enactment," Utah Dep't of Soc. Servs. v. Higgs, 656 P.2d 998, 1001 (Utah 1982) or (2) the amendment changed the prior law in a purely procedural way that does not affect the substantive rights of the parties. See Harvey v. Cedar Hills City, 2010 UT 12, ¶ 14, 227 P.3d 256 (stating retroactive application is permissible "if the amended version of the statute does not enlarge, eliminate, or destroy vested or contractual rights" (alteration and internal quotation marks omitted)); Brown & Root Indus. Serv. v. Indus. Comm'n, 947 P.2d 671, 675 (Utah 1997) (same).
¶ 42 Utah Code section 19-4-111 (Supp. 2009) contains no language about retroactive application; therefore, to determine if the amendments will override a possible private contract, we must determine whether the 2009 amendments to the statute are merely procedural or for clarification, or if they affect the substantive rights of the parties. We conclude that the 2009 amendments were not procedural in nature, and that they possibly affected vested contractual rights that existed before the changes to the statute were made.
1. The 2009 Amendments Do More Than Merely Clarify the Meaning of an Earlier Enactment
¶ 43 It is well established in our case law that "when the purpose of an amendment is to clarify the meaning of an earlier [statute], the amendment may be applied retroactively in pending actions." Due South, Inc. v. Dep't of Alcoholic Beverage Control, 2008 UT 71, ¶ 14, 197 P.3d 82 (alteration *1114 in original) (quoting Kilpatrick v. Wiley, 2001 UT 107 ¶ 59, 37 P.3d 1130). An amendment serves as a clarification when it corrects a discrepancy or merely "amplif[ies]... how the law should have been understood prior to [the amendment]." Richards Irr. Co. v. Karren, 880 P.2d 6, 8 (Utah Ct. App.1994) (internal quotation marks omitted). In cases of doubt or uncertainty as to the character of an amendment, the title or preamble to a statutory amendment may be examined to clarify the purpose of the change. See, e.g., Shelter Am. Corp. v. Ohio Cas. & Ins. Co., 745 P.2d 843, 845 (Utah Ct.App.1987) (noting the preamble to a statutory amendment stated that the purpose of the amendment was to clarify that a "mobile home" constituted a "motor vehicle," under the statute).
¶ 44 When we examine the 2009 amendments to Utah Code section 19-4-111, nothing in their text appears to be an attempt to clarify preexisting language. Rather, the amendments add a new subsection to the statute providing an additional exemption to the fluoridation requirement that did not exist in any form before the amendments were made. Should there be any doubt as to the character of these amendments, the preamble to Senate Bill 29, amending section 19-4-111, is instructive. It states, "[t]his bill defines terms; requires the majority of the voting shareholders of a corporate public water system to approve the addition or removal of fluori[d]e in the public water system; and makes technical changes." See Safe Drinking Water Act Amendments, ch. 371 § 1, 2009 Utah Laws 2029-30. This language makes clear that the amendment added a substantive requirement to the statute and was more than a mere clarification. We find the language in our case of Salt Lake Union Stock Yards v. Tax Comm'n, to be applicable to describe the situation:
In this case we see no room for the argument that the Legislature intended to give a definition retroactively to words used in a previous enactment. There is no language used in the ... amendment from which this can be inferred. [The amendment] is clearly an attempt to extend [a new] exemption to [another class] of [individuals].
93 Utah 166, 71 P.2d 538, 541 (1937). Senate Bill 29 was not a mere clarification of the law; it was an affirmative addition of a new exemption to the statute. We now turn to whether this addition was procedural in nature, or if it affected the substantive rights of the parties.
2. The 2009 Amendments Are Not Procedural Because They Grant Corporate Public Water Systems a Right That Did Not Previously Exist
¶ 45 As we stated above, the "substantive law to be applied throughout an action is the law in effect at the date the action was initiated." Higgs, 656 P.2d at 1000. An exception to this rule applies when a law is merely procedural rather than substantive in nature. See id. at 1000-01. A change to a law is procedural when it does not "enlarge, eliminate, or destroy any vested or contractual rights of the parties." Due South, 2008 UT 71, ¶ 15, 197 P.3d 82 (internal quotation marks omitted). A change is substantive "where the new statute establishes a primary right and duty which was not in existence at the time [the claim] arose." Ball v. Peterson, 912 P.2d 1006, 1009 (Utah Ct.App.1996) (internal quotation marks omitted).
¶ 46 We are persuaded that adding an exemption from the fluoridation requirement for "corporate public water systems" was not merely procedural in nature. Rather, we find that this change affected the structure, purpose, and key elements of Utah's fluoridation statutes. Utah law takes up the subject of fluoridation within the Safe Drinking Water Act in sections 19-4-101 to -112 of the Utah Code. Fluoridation of drinking water is mandated where the addition of fluoride is approved in a general election. Before the 2009 amendments added specific exemptions for corporate public water systems, these systems were required to comply with this fluoridation requirement. After the amendments, corporate public water systems were exempt from fluoridation. It is hard to envision a more substantive change than mandating an action under one statute and taking away that obligation in another.
*1115 ¶ 47 Because the 2009 amendments to Utah Code section 19-4-111 vested corporate public water systems with a right they previously did not have, the amendments were substantive in nature, and we decline to apply them retroactively to displace any terms in enforceable preexisting contracts entered into by Salt Lake County and Holliday Water before the amendments were made. Whether or not Salt Lake County and Holliday Water have an enforceable contract is not squarely before us on this appeal and should be determined in the pending action before the district court.
CONCLUSION
¶ 48 Because we conclude that the amendments to Utah Code section 19-4-111 moot Holliday Water's statutory obligation to fluoridate its water supply, we vacate the judgment of the district court, and remand with instructions to dismiss the complaint as moot. Although we conclude that Holliday Water has no statutory obligation under current law to comply with Salt Lake County Health Department's Regulation 33, Holliday Water may have a contractual obligation to fluoridate its water supply. The issue of whether a preexisting contract was entered between the parties that requires Holliday Water to fluoridate its water supply is presently pending in a separate action before the district court.
¶ 49 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice PARRISH concur in Justice NEHRING's opinion.
¶ 50 Justice WILKINS acted on this opinion prior to his retirement.
NOTES
[1] Fluorine is defined as "[a] pale-yellow, highly corrosive, poisonous, gaseous halogen element, the most electronegative and most reactive of all the elements, used in a wide variety of industrially important compounds." The American Heritage Dictionary 516-17 (2d ed. 1985). Concluding the Utah State Legislature would not contemplate adding a toxic substance to public water supply, even if by popular opinion, we assume the word "fluorine" in the statute should actually be the word "fluoride," a beneficial compound often added to a water supply to prevent tooth decay. As such, we use the term "fluoride" instead of "fluorine" throughout this opinion.
[2] Because we determine Senate Bill 29 does apply to this appeal, we decline to address the argument that Holliday Water meets the definition of a functionally separate water system under the 2005 version of the statute.
[3] Because Senate Bill 29 is now codified at Utah Code Ann. § 19-4-111 (Supp.2009), we refer to its statutory citation throughout the remainder of this opinion.
[4] Although we decline to undertake a comprehensive analysis of the lawmakers' intent behind this statute, we note that the legislative history in this case leaves us no doubt as to whom the "corporate public water system" definition was meant to apply. As Salt Lake County conceded at oral argument, the "corporate public water system" exemption and its related statutory amendments were passed as a direct result of the lobbying efforts of Holliday Water's shareholders, and in an attempt to achieve an exemption from Salt Lake County Health Department's fluoridation requirement.
[5] Although we decline Holliday Water's invitation to take judicial notice of its "corporate public water system" status, we note that the statutory definition of a corporate public water system strongly resembles the description of a "mutual water company" contained in our case law. See, e.g., E. Jordan Irr. Co. v. Morgan, 860 P.2d 310, 311 n. 1 (Utah 1993) (defining a "mutual water company" as a "nonprofit corporation formed to supply water only to its shareholders").
We find these mutual water cases and their discussion of the distribution of company water to shareholders to be instructive. Indeed, they illustrate the principle that once the water is distributed to a meter, it becomes the property of a shareholder and the corporation no longer has control over how the water is used. See id. at 318 ("The mutual water corporation is under a perpetual duty to deliver water to the shareholder; it may not decide that it would rather deliver the water to someone else or for some other purpose.... [It is] [t]he shareholder, not the corporation, [who] decides whether to use his or her water on certain crops, for domestic use," or whether to use the water for any purpose at all. (citation omitted)); Baird v. Upper Canal Irr. Co., 70 Utah 57, 257 P. 1060, 1065 (1927) (same); see also Consol. Peoples Ditch Co. v. Foothill Ditch Co., 205 Cal. 54, 269 P. 915, 920 (1928) ("The term `Mutual Water Company[]'... has no defined legal meaning which would serve to differentiate corporations, organized for the acquiring of water rights and the distribution of water, from other corporations owning and administering property for the benefit of their stockholders").
[6] The issue of whether the parties have an enforceable express agreement or an agreement by estoppel is a separate action that remains pending in the district court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1867744/ | 304 F.Supp. 40 (1969)
Lyle E. STRAHAN
v.
William L. STRAHAN and Martha H. Strahan.
Civ. A. No. 14120.
United States District Court W. D. Louisiana, Shreveport Division.
September 22, 1969.
*41 J. Stanley Wagner, Robert G. Hebert, New Orleans, La., for plaintiff.
Berry & Lee, Winnsboro, La., A. Leon Hebert, and David Donnell Moss, Hebert, Moss & Graphia, Baton Rouge, La., for defendants.
OPINION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BENJAMIN C. DAWKINS, Jr., Chief Judge.
The issue in this diversity case is whether the laws of Louisiana violate the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution by denying the right of inheritance to an illegitimate child of a decedent, as against his legitimate heirs. Defendants moved for summary judgment.
Plaintiff, the alleged illegitimate son of the intestate whose property is the object of this suit, asserts that the rationale of Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and Glona v. American Guarantee Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), should apply to Louisiana succession laws. Those cases held that "children," as used in Louisiana Civil Code, art. 2315,[1] (without further categorization,) included illegitimate children, reasoning that a child should not be "denied rights merely because of his birth out of wedlock."
We do not think those decisions have such a far-reaching effect.[2] In the first place, the statutes in Levy and Glona created rights which never existed before their enactment. See dissent in Glona, 391 U.S. 76, 88 S.Ct. 1515 (1968). Without that law, no person parent, collateral, or child (legitimate or illegitimate) could recover for the wrongful death or suffering of another. Only through legislative grace are such actions maintainable. Conversely, laws regulating the orderly transmission of a decedent's property are founded on the most ancient legal principles.[3] For centuries they have been the basis for establishment of clearly definitive disposition of estates from generation to generation.
*42 It is axiomatic that "* * * the settlement and distribution of decedents' estates and the right to succeed to the ownership of realty and personality are peculiarly matters of state law." Harris v. Zion's Savings Bank & Trust Co., 317 U.S. 447, 450, 63 S.Ct. 354, 357, 87 L.Ed. 390 (1943). As such, the States are free to establish their own regulations and their only guideline is not arbitrarily or unreasonably to discriminate in enacting their applicable laws.
"Differences and distinctions in a state's treatment of persons are frequently claimed to be discriminatory in violation of the Equal Protection and Privileges and Immunity Clauses of the Fourteenth Amendment. But such differences and distinctions, even when applied to persons clearly protected by the Fourteenth Amendment, are not in themselves unconstitutional. It is only when the variations are arbitrary and without reasonable legal basis that an unconstitutional discrimination occurs. A long line of decisions has molded this judicial concept." United States v. Burnison, 339 U.S. 87, 91, 70 S.Ct. 503, 508, 94 L.Ed. 675 (1950).
The distinction between legitimate and illegitimate children in the succession laws of Louisiana is not arbitrary or without reasonable legal basis. Louisiana has a paramount interest in encouraging the institution of marriage and discouraging the birth of illegitimate children. That it chooses to use its inheritance laws as one of its methods in that effort clearly is within its constitutional province. In providing for the welfare of its illegitimate children, Louisiana has distinguished between those illegitimates who may be acknowledged by their parents ("natural children"), and thus enjoy the possibility of sharing in succession property, and those whose rights include only a mere alimony,[4] (unacknowledged illegitimates). Neither do these distinctions constitute invidious discrimination.
Since the Legislature of a State may "* * * limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction," Irving Trust Company v. Day, 314 U.S. 556, 562, 62 S.Ct. 398, 401, 86 L.Ed. 452 (1941); United States v. Burnison, supra, Louisiana could permissibly enact a law providing that a testator could leave no more than $10.00 to an illegitimate child. Such a law clearly would be within the State's power. Likewise, Louisiana may and does provide that an illegitimate child cannot inherit as against legitimate heirs from his intestate parents, or inherit under certain conditions only, and this does not do violence to the Fourteenth Amendment.
Conceding for purposes of argument only and for no other reason, that the illegitimate child should share in Louisiana successions, the State has an even more powerful overriding and paramount reason for denying this right. We refer to the State's indisputable vital interest in the stability of its land titles.
"As it is indisputable that the general welfare of society is involved in the security of the titles to real estate and in the public registry of such titles, it is obvious that the power to legislate as to such subjects inheres in the very nature of government. * * *
* * * * * *
"`It [the state] has control over property within its limits; and the condition of ownership of real estate therein, whether the owner be stranger or citizen, is subject to its rules concerning the holding, the transfer, liability to obligations, private or public, and the modes of establishing titles thereto. * * * The well-being of every community requires that the title to real estate therein shall be secure, and that there be convenient and certain methods of determining any unsettled questions respecting it. The duty of *43 accomplishing this is local in its nature; it is not a matter of national concern or vested in the general government; it remains with the state; and as this duty is one of the state, the manner of discharging it must be determined by the state, and no proceeding which it provides can be declared invalid, unless it conflict with some special inhibitions of the Constitution, or against natural justice.'
"* * * Undisclosed and unknown claimants are, to say the least, as dangerous to the stability of titles as other classes. This principle received recognition and was applied in Hamilton v. Brown, 161 U.S. 256, 16 S.Ct. 585, 40 L.Ed. 691, where it was held to be competent for a state to make provision for promptly ascertaining, by appropriate judicial proceedings, who has succeeded to property upon the death of a person leaving such property within the state. * * *.
* * * * * *
"`* * * The power of the state as to titles should not be limited to settling them as against persons named. In order to exercise this power to its fullest extent, it is necessary that it should be made to operate on all interests, known and unknown. * * *'" American Land Company v. Zeiss, 219 U.S. 47, 60, 31 S.Ct. 200, 204, 55 L. Ed.2d 82 (1910).
Because of this dominant and legitimate interest, "[t]he power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. * * * The title and modes of disposition of real property within the State, whether inter vivos or testamentary, are not matters placed under the control of Federal authority. * * *" United States v. Fox, 94 U.S. 315, 320, 24 L.Ed. 192 (1876); United States v. Burnison, supra; and Richardson v. McDonald, 139 La. 651, 71 So. 934 (1916).
This is as it should be since "[c]oncepts of real property are deeply rooted in State traditions, customs, habits, and laws." Reconstruction Finance Corporation v. Beaver County, 328 U.S. 204, 210, 66 S.Ct. 992, 995, 90 L.Ed. 1172 (1946).
There simply must be a method for prompt and final definitive determination of valid ownership of real property left by a decedent. Louisiana feels that the proper way to insure this is to know who the claimants to a decedent's property are and to recognize the legally instituted claimants as owners shortly after a succession is opened. To hold that an illegitimate child may one day perhaps many years later come along and assert an interest in adjudicated property would devastate the orderly transmission of immovable property. "All titles would be insecure, and the intercourse between man and man would be very seriously obstructed, if this principle be overturned." Fletcher v. Peck, 10 U.S. 87, 6 Cranch. 87, 133, 3 L.Ed. 162 (1810).
"It is settled in Louisiana that a prospective purchaser cannot be made to accept a title that is suggestive of future litigation. The test is not whether the outstanding claim is well founded, but whether the claim presents a possibility of future serious litigation." Kinler v. Griffen, 251 F.2d 655, 658 (5th Cir. 1958).
If plaintiff were to prevail here, this possibility often could present itself, and its devastating effects upon commercial land transactions cannot be overemphasized.
Louisiana's laws on inheritance were not conceived abruptly or discriminatorily, but are the product of the deepest *44 legal thought, tempered by experience and practicality. The redactors saw fit to distinguish among the various survivors of a decedent insofar as their right to inherit property were concerned. That they deemed it proper to favor a descendant over an ascendant, an ascendant over a collateral, or a legitimate over an illegitimate was within their constitutional authority. Such distinctions are not violative of any Federal Constitutional rights.
Moreover, while confecting the portion of the Louisiana Civil Code on successions, the writers clearly also had in mind the property laws of the State found in that same basic legal work.[5] The interrelationship of the various sections of the Civil Code enables commercial land transactions to proceed on an orderly and legally ascertainable basis. Had the lawmakers permitted illegitimate children to share in a decedent's succession, no title to property would ever be secure and certain. The catastrophic effects of such a law upon all land titles may not be emphasized too strongly.
For the foregoing reasons, defendants' motion for summary judgment is granted.
NOTES
[1] This statute allows certain surviving relatives to recover for wrongful death and suffering of a decedent.
[2] This Court is cognizant of the North Dakota Supreme Court opinion of In Re Estate of Jensen, 162 N.W.2d 861 (1968), and the possibility that other State Courts may have made similar decisions, holding that Levy requires that a State may not prevent an illegitimate child from sharing in the succession of his parents when there are legitimate children in the family. We also notice that New York and California have recently changed their laws of inheritance to put illegitimates and legitimates in the same category insofar as succession laws are concerned. See California Probate Code, § 257 (West, 1956), and McKinney's Consolidated Laws, c. 17-b, § 4-1.2 (McKinney, 1967).
[3] 33 Tulane Law Rev. 43 (1958), and authorities cited therein.
[4] La.Civil Code, arts. 918-920.
[5] See Book 2, Louisiana Civil Code. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1766842/ | 633 So.2d 380 (1994)
Keith PRUDHOMME, Plaintiff-Appellant,
v.
IBERVILLE INSULATIONS, Defendant-Appellee.
No. 93-778.
Court of Appeal of Louisiana, Third Circuit.
March 2, 1994.
Rehearing Denied April 7, 1994.
Thomas Joseph DeJean, Opelousas, for Keith Prudhomme.
*381 Edward Frank Stauss III, Scott H. Fruge, Baton Rouge, for Iberville Insulations.
Before DOUCET, YELVERTON and SAUNDERS, JJ.
YELVERTON, Judge.
This appeal by the claimant in this worker's compensation case raises the issue of whether his second claim was properly dismissed on an exception of res judicata.
Prudhomme worked for Iberville Insulations, Inc. in Baton Rouge. He lived in Port Barre, some 70 miles away. He had an accident on the job on November 12, 1991. He saw a number of doctors and received physical therapy treatments. He was released to light-duty work by his doctors. Full benefits were paid until June 8, 1992. It was when his doctors released him for light-duty work that his employer stopped paying benefits and, instead, offered him a modified light-duty job. A few days later, on June 19, 1992, he filed a claim for benefits. Although the claim form looked like it was a routine claim for any and all relief, when the matter went to trial in October 1992 the case had boiled down to a single issue. There was no issue as to whether he could resume his regular work. All doctors had released him to light-duty work only. The issue was whether Prudhomme could handle the modified job because of the necessity that he drive the 140 mile round trip between his home in Port Barre and the work site in Baton Rouge. He contended that it was not the modified job that bothered him, but the drive over and back, which caused too much pain in his back. The matter went to trial and on November 17, 1992, the hearing officer rendered a judgment dismissing the claim with prejudice. The brief reasons for judgment stated specifically that "the hardship of the drive to his light-duty job was something, in the opinion of the court, claimant could and should have endured." No appeal was taken from that judgment.
Instead, three weeks later, on December 10, 1992, Prudhomme filed another claim. Prudhomme argues that during this three week interval he attempted another try at work in the modified, light-duty job at Iberville Insulations, Inc. Also, he sought out a work-hardening program and physical therapy recommended by the doctors involved. He contends that not only did Iberville Insulations, Inc., withdraw the modified position, but they also refused the work-hardening and physical therapy programs. He contends that it was because of what happened during that three week interval that he filed the second worker's compensation claim.
To this claim the employer and its insurer, Aetna Casualty and Surety Company, filed an exception of res judicata. A different hearing officer heard the exception, granting it and rendering judgment dismissing the second claim. That is the judgment which is before us on this appeal.
In sustaining the plea of res judicata, the hearing officer believed:
That the claim for supplemental earnings benefits has already been litigated as well as the claim for continuing medical treatment which would include treatment through Dr. Mayer and any recommendations that he might have which would include physical therapy as well. So for that reason, the exception is sustained.
On this appeal, the claimant contends that the hearing officer at the first hearing specifically limited the issues at the outset of the trial, that the judgment rendered at the conclusion of the trial addressed only the issues as limited, and that it cannot be treated as res judicata of the right to pursue other issues in a later proceeding. This argument has merit. For reasons which follow we reverse and remand.
The res judicata statute, La.R.S. 13:4231 as amended effective January 1, 1991, states in part:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
* * * * * *
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the *382 subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
As stated in the comments to this statute, the amendment made a substantial change in the law. Prior to January 1, 1991, a second action was barred by the defense of res judicata only when the plaintiff sought the same relief based on the same cause or grounds. Under new La.R.S. 13:4231 the second action is barred if it arises out of the transaction or occurrence that was the subject matter of the litigation. According to the comments, the new law provides a broader application of res judicata, the purpose being to foster judicial efficiency and also to protect the defendant from multiple lawsuits.
La.R.S. 13:4232 provides exceptions to the general rule of res judicata. Subsection (3) of Section 4232 declares that a judgment does not bar another action by the plaintiff when the judgment reserved the right of the plaintiff to bring another action. The question that we must ask in this case is whether the express limitation by the hearing officer of the scope of the hearing at the first trial was, in effect, a reservation to the plaintiff of the right to bring another action for those matters not included in the scope of the first hearing. We believe that it was, especially when we examine this worker's compensation case in the light of the rule that the Act must be construed liberally in favor of the employee.
The claimant's exhibit No. 1 in evidence is a transcript of the opening colloquy between the attorneys and the hearing officer at the first hearing. The hearing officer announced his understanding of the issue before him in the following words:
All right, that he has notthat he has chosen not to accept the employment because the seventy miles allegedly is too far for him to drive because of his physical condition as a result of the work related incident. The claimant is alleging that he tried to perform this work, that he tried the driving but could not do it. The defendant, as I understand it, states that, well, under the law the distance from his home to the job is not a relative [sic] factor, Number one, Number two, that in fact he canhe is of the physical condition where he can drive the seventy miles to and from work and that they may have the proof to show it. Is there anything else? And I think we can even go further that all the doctors have stated he can do the light-duty work, I don't even think the claimant is alleging he cannot do the light-duty work. The only part about the job which the claimant is alleging is the reason why he cannot do the work is because of the distance involved....
* * * * * *
As a result of this the claimant is alleging that he is entitled to S.E.B. and I would assume would be the full amount to which he would be entitled to because there is no other.
After this the matter proceeded to trial. Some of the record of the first hearing, but not all of it, is in evidence. For example, the live testimony of the claimant and Dr. Mayer at the hearing is not transcribed and is not before us. We have only depositions and medical reports. Accordingly, we had little help from this record in determining what the issues were. The post-hearing briefs, however, taken together with the above remarks of the hearing officer, make the issue clear.
In his post-trial letter memorandum the claimant addressed the issue as earlier defined by the hearing officer. The claimant ended his argument by urging that the job that was tendered to him required him to drive from his home to his employer's place of business seventy miles away, that he could not do that because of back problems, and therefore, the modified job was work which he was physically not able to perform. The argument concluded with the assertion that Prudhomme was entitled to SEB benefits from the date of his termination, continuing until a showing was made that he was physically able to do work that had been offered or tendered to him. Additionally, he argued that the work tendered was premature as all three doctors had recommended physical therapy or a work-hardening program, which would make a release to work impossible. As stated earlier, the brief reasons for judgment *383 gave a credibility explanation of why the hearing officer believed that the claimant could and should be able to drive to his light duty job, and that was it.
What we are dealing with in this case is the simple question of whether this claimant has had his day in court. The record quite clearly indicates that he has not. The only hearing he has ever been given was limited to the issue of whether driving back and forth from Port Barre to Baton Rouge was so unendurable that he could not hold down the modified job, and was therefore entitled to Supplemental Earnings Benefits. The hearing officer decided that the drive was not hurting him that much, that he could hold down the job, and that was the end of the hearing.
This ruling can hardly be translated into a ruling to which res judicata might attach, i.e., that the claimant suffered no disability from his job related accident. Disability was not an issue at all. All three doctors had released Prudhomme to light-duty work only, and the modified job he had been offered by the employer was a light-duty job.
Judgment in worker's compensation cases are treated different than ordinary judgments. Gary v. H B Zachry Co., Inc., 631 So.2d 671 (La.App. 3d Cir.1994). A good argument could be made in the present case that, even if we were to conclude that the first decision addressed the merits of disability, we could remand and order that the second claim be now treated as an application for modification, six months having passed since it was filed, under La.R.S. 23:1331. See Disotell v. Wadsworth-Golf Const. Co., 500 So.2d 371 (La.1987). We mention this possibility merely to demonstrate the liberality with which worker's compensation claims are viewed. We do not, however, regard this second claim as an application for modification.
The present case is being decided as it is simply because we find that the res judicata statute does not apply; one of its exceptions applies. By limiting the issues at the first hearing, the hearing officer reserved to the claimant the right to bring another action. He is entitled to a full hearing of his worker's compensation claim. All that was precluded by the first judgment was the limited issue of his ability to handle the roundtrip drive from Port Barre to Baton Rouge.
For the foregoing reasons, the judgment maintaining the plea of res judicata is reversed and set aside. The case is remanded to the trial court for a full hearing on the merits of whatever benefits the claimant may prove himself entitled under the Worker's Compensation Act. The defendants will pay the costs of this appeal.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2014272/ | 293 B.R. 806 (2003)
In re Scott BERCU, Debtor.
Julie Kagan and Saborax, Ltd., Plaintiffs,
v.
Scott Bercu, Defendant.
Bankruptcy No. 02-03556-9P7. Adversary No. 02-459.
United States Bankruptcy Court, M.D. Florida, Ft. Myers Division.
May 9, 2003.
*807 Edward R. Miller, Naples, FL, for defendant.
*808 Marshall L. Cohen, Fort Myers, FL, for plaintiff.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALEXANDER L. PASKAY, Bankruptcy Judge.
The matter before this Court in the Chapter 7 case of Scott Bercu (Debtor) is a claim of nondischargeability of a debt alleged to be owed by the Debtor to Julie Hagerty Kagan (Ms. Hagerty) and Saborax, Ltd. (Saborax), both of whom commenced this adversary proceeding.
Although Ms. Hagerty, in the original complaint filed on June 7, 2002, set forth several claims of nondischargeability, the original complaint was dismissed with leave granted to amend. The amended complaint, filed on August 21, 2002, similar to the original complaint was dismissed, with leave granted to amend. The Second Amended Complaint, filed on October 17, 2002, set forth only two counts. Pursuant to an Order of this Court, entered on November 26, 2002, this Court dismissed Count I with prejudice and dismissed a portion of Count II with prejudice but permitted the embezzlement claim to remain. This is the only claim remaining unresolved concerning the nondischargeability asserted by Ms. Hagerty, based on Section 524(a)(4) of the Code.
At the duly scheduled final evidentiary hearing, the following facts relevant and germane to the claim of embezzlement were established. The Debtor is a Certified Public Accountant (CPA). He began his career as a CPA at the firm of Hecht & Company (Hecht). Initially, he was employed as a junior accountant but, in time, advanced to the position of senior accountant. Ultimately, he became the supervisor of the department of accounting for Hecht.
Ms. Hagerty is a known stage and film actress, and has been featured in motion pictures such as Airplane I and II; and on the TV series such as the Princesses and Everybody Loves Raymond. She was a client of Hecht since 1983. In 1984, the Debtor was assigned to handle the affairs of Ms. Hagerty. Particularly, he was placed in charge of handling all of her financial affairs: to pay her bills, to collect her income, and to follow up on royalties, which were due to her from all of her various contracts. He assisted Ms. Hagerty in obtaining loans by shopping for the best and most favorable terms.
Ms. Hagerty handled her affairs through a corporation known as Saborax. The bank account involved in this controversy was maintained by Saborax, on which the Debtor had signatory power. All of her earnings from acting were deposited into this particular account and the Debtor drew checks on this account. He paid Ms. Hagerty's bills as they became due; to the extent funds were available.
The Debtor left Hecht in August of 1993, and set up his own firm under the name of Scott Bercu, L.C., which was later changed to Bercu & Co., CPAs. Ms. Hagerty terminated her relationship with Hecht and retained the Debtor's firm to handle her financial affairs. It is without dispute that when he established his own firm, the Debtor handled Ms. Hagerty's financial affairs in the same manner as he did while he was and employed by Hecht.
This relationship was quite loose and informal, in that the Debtor did not regularly bill Ms. Hagerty for his services and that Ms. Hagerty appears to have never complained of this arrangement. In fact, during the entire time they were associated with each other from August 1993 until January 1998, or some four and one half *809 years, the Debtor only billed Ms. Hagerty on very few occasions. In fact, out of a fifty-four month period, she was billed only fifteen times. According to the Debtor, he only billed her when there were sufficient funds in the account of Saborax to pay the bill.
Just as before, the Debtor again opened a checking account for Saborax, this time at a different bank, the Republic National Bank of New York (Republic). All bank statements from Republic and all cancelled checks were sent to the Debtor's office. All bills received were also forwarded to the Debtor's office, kept in the Debtor's office, and not sent to Ms. Hagerty's residence. In the year 1996, the Debtor paid himself for services rendered in the amount of $11,000. In the year 1997, he also received the sum of $10,000. All monies came out of the Saborax bank account. It also appears that the Debtor loaned money from time to time to Ms. Hagerty, or paid on her behalf car payments, although there was no documentary evidence presented to support this claim. According to the Debtor, Ms. Hagerty owes the Debtor the between $30,000-$35,000. The total payment received during the fifty-seven months appears to be a little over $20,000.
This record leaves no doubt that Ms. Hagerty either was unwilling or incapable of handling her own financial affairs and was basically constantly broke. The fact of the matter is that on June 18, 1998, Ms. Hagerty filed a voluntary Petition for Relief under Chapter 7 in the Bankruptcy Court of the Central District of California. (Db.Ex. 1). In her Schedule of Unsecured Non-priority Claims, Ms. Hagerty scheduled her debts in the total amount of $309,250. She scheduled the Debtor as a creditor in the amount of $75,000, with the basis stated as a potential liability of the Debtor for indemnity or contribution on certain promissory notes to Republic. However, the Schedule of Assets failed to state a potential claim against the Debtor based on the claim, which she is now asserting, which is the basis of her nondischargeability claim. The relationship between the Debtor and Ms. Hagerty terminated in January of 1998.
At the trial, counsel for Ms. Hagerty spent considerable time establishing that the Debtor did not perform competently and that he overcharged Ms. Hagerty for his services. This Court is satisfied that there was no evidence presented at the trial that the Debtor embezzled any funds from Ms. Hagerty.
Basically, these are the salient facts established at the final evidentiary hearing based on which Ms. Hagerty contends that the debt in the amount of $100,000, represented by proof of claim no. 7, claimed to be owed to her by the Debtor should be excepted from the overall protection of the general bankruptcy discharge based on Section 524(a)(4) of the Code. In the post-brief submission, Ms. Hagerty sought to be excepted from the general discharge the sum of $20,000.
Before considering the law applicable to the resolution of the ultimate issue, i.e. the validity of the claim of embezzlement, there are two preliminary issues, which have to be considered and resolved. The first involves the standing of Saborax to maintain this challenge of the dischargeability claim of the Debtor. The standing issue, raised by the Debtor, is based on the undisputed fact the Saborax, a Delaware corporation, was dissolved by the State of Delaware, on June 1, 2000, for its failure to pay the franchise taxes on March 1, 2000.
It is uniformly recognized that the right of a corporation to sue is governed by the State of incorporation. *810 In re ABZ Ins. Services, Inc., 245 B.R. 255 (Bankr.N.D.Tex.2000); Casselman v. Denver Tramway Corporation, 195 Colo. 241, 577 P.2d 293 (1978). Thus, in the present instance the laws of the State of Delaware govern the standing of Saborax to be able to sue. Section 278 of Delaware Corporation Law provides that
All corporations, whether they expire by their own limitation or are otherwise dissolved, shall nevertheless be continued, for the term of 3 years from such expiration or dissolution[.] . . . [W]ith respect to any action, suit or proceeding begun by or against the corporation either prior to or within 3 years after the date of its expiration or dissolution, the action shall not abate by reason of the dissolution of the corporation.
See Johnson v. Helicopter & Airplane Services Corp., 404 F.Supp. 726 (D.Md.1975).
Florida law likewise echoes the laws of Delaware, governing the right of a dissolved corporation to sue. It does not require a corporation, which has been dissolved for failure to file annual reports, to seek reinstatement before it can sue. National Judgment Recovery Agency v. Harris, 826 So.2d 1034 (Fla. 4th DCA 2002). Based on the foregoing, this Court is satisfied that Saborax has standing to maintain this action commenced on June 9, 2002, which is well within the three year grace period.
The next issue raised by the Debtor, before the ultimate issue should be considered, is the applicability of the doctrine of judicial estoppel. The doctrine of judicial estoppel is equitable in nature and is invoked at the court's discretion only to prevent the perversion of the judicial process by precluding a party from "asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding." Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir.2002). Courts consider two factors in the application of judicial estoppel. First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding; and second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system. Burnes, 291 F.3d at 1287; Salomon Smith Barney, Inc. v. Harvey, 260 F.3d 1302 (11th Cir.2001).
In considering the application of this doctrine, a court must consider all of the circumstances and facts relevant to the intent of the party against whom the doctrine sought to be invoked. Burnes, 291 F.3d at 1286. In the present instance, the invocation of the doctrine of judicial estoppel is based on the undisputed fact that Ms. Hagerty in her own bankruptcy case, failed to disclose on her Schedule of Assets, her claim against the Debtor, which clearly would have been property of her bankruptcy estate pursuant to Section 541(a) of the Code.
It is without dispute that bankruptcy counsel represented Ms. Hagerty in her bankruptcy case filed in California. There is no evidence in this record to establish that she told her attorney of this potential claim against the Debtor; or that she willfully and intentionally concealed this potential claim from her attorney. Neither is there any evidence, which warrants the finding that her attorney explained to her the legal definition of a claim and the duty to disclose even unliquidated or merely potential claims on the Schedule of Assets. Ms. Hagerty is seriously dyslexic, never graduated from high school, and is totally unsophisticated in finances. In spite of her earnings as an actress, which was quite substantial, she was constantly broke. Outside of her focus on her career as an actress, she was totally oblivious and ignorant of all matters involving controlled sensible budgeting and apparently never *811 gave much thought to consider the limits of her funds available to meet her high standard of living.
It is fair to assume that she relied on her attorney in the preparation of the Petition and all documents required to be filed pursuant to F.R.B.P. 1007. Her reliance was justified. Reliance on advise of counsel, especially by an unsophisticated debtor, bespeaks against the application of the doctrine. Pealo v. AAF McQuay, Inc., 140 F.Supp.2d 233 (N.D.N.Y.2001). There is no evidence in this record, which would warrant the finding that her failure to schedule this claim against the Debtor was a deliberate attempt to conceal from the court and from creditors a claim, the value and the viability of which at that time she filed her bankruptcy case in California, was highly questionable and uncertain.
It is well established that doctrine is an extraordinary remedy to be applied only when there is evidence of an intentional and deliberate manipulation. Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3rd Cir.1996); New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001).
In sum, based on this record and the principles which govern the doctrine of judicial estoppel, this Court is satisfied that it would be inappropriate to apply the doctrine and the same is not a bar to the claims of both Saborax and Ms. Hagerty. This leads to the ultimate issue which is the claim of nondischargeability, based on the charge of embezzlement which if established would except the liability of the Debtor from the overall protection of the general bankruptcy discharge pursuant to § 523(a)(4) of the Code.
It is well established that to establish a viable claim of nondischargeability, the burden is on the plaintiff to present creditable evidence with a preponderance of the evidence and the standard is no longer clear and convincing. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Nevertheless, it is still essential to prove the essential elements of an embezzlement. These elements are (1) appropriation of funds by the debtor; (2) for the debtor's use or benefit; and (3) with fraudulent intent. In re Jenkins, 110 B.R. 74 (Bankr.M.D.Fla.1990); In re Beckett, 96 B.R. 366, 368 (Bankr.M.D.Fla.1989).
Courts are uniform in the interpretation of Section 523(a)(4) of the Code that a finding of nondischargeability of a debt arising through embezzlement does not require a fiduciary relationship between the plaintiff and the debtor/defendant. In re Rebhan, 45 B.R. 609 (Bankr.S.D.Fla.1985), aff'd, 842 F.2d 1257 (11th Cir.1988); In re Crosswhite, 91 B.R. 156 (Bankr.M.D.Fla.1988).
Although in several states, embezzlement as such has been incorporated into a claim of larceny, in the context of Bankruptcy, embezzlement requires a showing of property rightfully in the position of a non-owner, and a non-owner's appropriation of the property or use other than for what it was entrusted with the intent to permanently deprive the owner of the property. In re Littleton, 942 F.2d 551 (9th Cir.1991); In the Matter of Burgess, 106 B.R. 612 (Bankr.D.Neb.1989).
In the present instance, the thrust of Ms. Hagerty's complaint is nothing more than a claim that the Debtor overcharged her for his services. To substantiate this contention, Ms. Hagerty presented an expert witness from New York, who testified that the charges made by the Debtor were grossly excessive and substantively greater than is commonly charged for similar work in New York City. Assuming for the purpose of discussion *812 that this Court accepts this testimony, it proves nothing more than that the Debtor overcharged Ms. Hagerty. The fact of the matter is that on cross-examination, Ms. Hagerty flatly denied that the Debtor "stole" any money from her, and merely overcharged her. This is a far cry in establishing embezzlement, which is the sole basis to except the debt claimed to have been owed to her by the Debtor, within the exception of Section 523(a)(4) of the Code.
Based on the foregoing, this Court is satisfied that Ms. Hagerty failed to establish with the requisite degree of proof a viable claim of exception to discharge under Section 523(a)(4) of the Code.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that Count II of the Second Amended Complaint be, and the same is hereby, dismissed with prejudice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2036075/ | 606 N.E.2d 621 (1992)
239 Ill. App.3d 91
179 Ill.Dec. 789
Bonnie S. BEVERLY, Plaintiff and Counterdefendant-Appellee,
v.
David J. REINERT, Defendant and Counterplaintiff-Appellant (James L. Haderer et al., Third-Party Defendants-Appellees).
No. 2-92-0121.
Appellate Court of Illinois, Second District.
December 3, 1992.
Rehearing Denied February 5, 1993.
*622 Clarence F. Wittenstrom, Jr., Eric M. Johnson, Gromer, Wittenstrom & Meyer, P.C., Elgin, for David J. Reinert.
James F. Best, Sarah E. Senechalle, Fraterrigo, Best & Beranek, Wheaton, for Bonnie S. Beverly.
Gilbert X. Drendel, Jr., Eugene P. Sullivan, Drendel, Schanlaber, Horwitz & Tatnall, Aurora, for James L. Haderer.
Justice McLAREN delivered the opinion of the court:
The defendant and counterplaintiff, David J. Reinert (defendant), appeals from a trial court order dismissing his counterclaim against the plaintiff, Bonnie Beverly, and his third-party complaint against third-party defendants, James L. Haderer and Gilbert X. Drendel, Jr. The defendant alleged that the plaintiff and third-party defendants invaded the defendant's privacy by publicly disclosing private information. The trial court held that the counterclaim and third-party complaint failed to state a cause of action (see Ill.Rev.Stat.1991, ch. 110, par. 2-615).
On appeal, the defendant argues that, according to the standards set forth in Miller v. Motorola, Inc. (1990), 202 Ill.App.3d 976, 148 Ill.Dec. 303, 560 N.E.2d 900, his counterclaim and third-party complaint stated causes of action for invasion of privacy.
The plaintiff and the third-party defendants argue that the trial court properly dismissed the complaint because (1) the allegation that Drendel, the plaintiff's attorney, transmitted certain information to the defendant's attorney, and ultimately to Haderer, the plaintiff's brother, via facsimile machine (fax) did not amount to an allegation that such information was publicly disclosed; and (2) the information allegedly disclosed was not private. The plaintiff and third-party defendants also request that we find this appeal frivolous and that we impose appropriate sanctions on the defendant (see 134 Ill.2d R. 375(b)).
We agree with the trial court that the defendant failed to state a cause of action for public disclosure of private information. However, as Illinois law has not firmly established the parameters of this tort, we decline to hold that the appeal is frivolous.
The plaintiff began this litigation with a complaint to dissolve a partnership between her and the defendant. She alleged the following. On October 5,1989, she and the defendant entered into an agreement, later amended, for the purchase and management of a residence at 918 Glenmore in Elgin (918 Glenmore). In accordance with the agreement, they purchased 918 Glenmore, obtained a mortgage, made payments on the mortgage and other relevant expenses. As partners, they managed 918 Glenmore. Since March 19, 1991, the plaintiff and the defendant had been irreconcilably deadlocked over the management of 918 Glenmore; the plaintiff wished to sell the property and the defendant wished to lease it to a third party or parties. Because the defendant would not consent to a dissolution, the plaintiff requested that the court dissolve the partnership, divide the proceeds equitably, and require the defendant to account for all partnership dealings and transactions.
In a second count, for injunctive relief, the plaintiff, a school teacher, alleged that the defendant had attempted to embarrass her in her place of employment and to cause her to be terminated as a teacher. Specifically, she alleged that the defendant: (1) wrongly accused her of removing some of his personal files from 918 Glenmore; (2) unjustifiably demanded the plaintiff's personnel files from the personnel director of her school district; (3) authorized his attorney to inform the plaintiff's attorney by letter of May 9, 1991, that the plaintiff's removal of the defendant's files could be "official misconduct" which might cause her to be terminated; (4) on May 17, 1991, wrote the plaintiff that he intended to disclose to the local board of education and to the press "all of the letters of communication from both attorneys, the police report, letters from you, and documentation from [the mortgage lender] which I think tells the story of a poor school teacher [guilty of improper conduct]."
*623 The defendant moved to dismiss the first count of the complaint and filed an answer to the second count. He also filed a three-count counterclaim against the plaintiff. Count I alleged that the plaintiff had breached an agreement under which she was to pay half of the monthly principal and interest on 918 Glenmore; that she had failed to pay real estate taxes and do maintenance work on the property as agreed; and that, on March 17, 1991, the plaintiff had moved out of 918 Glenmore, saddling the defendant with plaintiffs share of the obligations since then. Count II alleged that the plaintiff had not fulfilled certain obligations of a contract to work for the defendant's sporting goods store. Count III alleged that she unlawfully took various of the defendant's possessions from 918 Glenmore and converted them to her own use.
Finally, the defendant filed a "Counterclaim and Third-Party Complaint for Invasion of Privacy" against the plaintiff and third-party defendants. Defendant alleged that, on May 10, 1991, one or more of these three people sent a fax from Drendel to the defendant's attorney, Clarence Wittenstrom, Jr. The fax states in part that (1) the defendant's contact with the regional school board was a malicious attempt to interfere with the plaintiff's employment, and (2) the plaintiff planned to sue the defendant for this action and for his defamatory claims that the plaintiff had breached contracts and removed his personal files.
The defendant alleged that, on May 9, 1991, Drendel received a fax from the defendant's attorney. On information and belief, the defendant alleged that either the plaintiff or Haderer, without defendant's permission, faxed a copy of this letter to Drendel. The defendant alleged finally that, on April 12, 1991, one or more of plaintiff and third-party defendants faxed a letter from Drendel to the defendant's attorney. In the April 12, 1991, letter, Drendel informed Wittenstrom that the defendant's conduct had forced plaintiff to vacate 918 Glenmore; that the plaintiff wished that the house be sold and did not authorize the defendant's attempts to rent out the house; and that the plaintiff would not pay for home repairs that were unnecessary and done without her consent.
The defendant asserted that these communications interfered with his privacy because, as fax technology is unreliable, the communications may have gone to the wrong parties (as a result of mistransmission) or may have been picked up by outside parties with proper receiving equipment. The defendant asserted that the unauthorized transmission and possible dissemination to unintended parties of the faxes had caused him to fear that he would lose the respect of those who knew him.
Attached as an exhibit was the defendant's affidavit, stating that the defendant's marriage to Dianne Reinert had been dissolved by judicial order on May 20, 1988; that some time in 1987, the plaintiff and the defendant had become lovers; that on or about August 15, 1987, the plaintiff started employment with the defendant's sporting goods store; that, on October 6, 1989, the plaintiff and the defendant entered into a trust agreement to purchase 918 Glenmore and take out a mortgage; that on or about October 26, 1989, the plaintiff and her three sons moved into 918 Glenmore; that the defendant built certain improvements to the house and kept his business records there; and that the defendant and the plaintiff cohabited at 918 Glenmore until the plaintiff moved out on March 17, 1991.
The plaintiff and third-party defendants moved to dismiss the invasion of privacy claims. They argued that the faxes were not communications to the public at large or to persons with whom the defendant had a special relationship; that the defendant had alleged only that the faxes could have been misdirected, not that any outside parties had actually received the transmissions; and that any facts disclosed were the subject of later litigation and thus not private.
The trial court dismissed the counterclaim and third-party complaint. The defendant moved to reconsider, submitting a proposed amended pleadings on his invasion of privacy claims.
*624 The amended pleadings alleged that, before the plaintiff initiated the litigation, one or more of the plaintiff and third-party defendants faxed letters from Drendel to defendant's attorney. The letters were dated April 12, 1991, May 10, 1991, and May 24, 1991. On information and belief, the defendant alleged that these faxes were broadcast via satellite. Also on information and belief, the defendant alleged that the plaintiff faxed her letter of May 9, 1991, to Drendel from the offices of her employer, the school district.
The defendant alleged in his amended pleading that the faxes publicized highly private and sensitive matters to "the general public and/or to a particular public," i.e., Haderer. These sensitive matters included (1) the defendant's contact with the regional school superintendent; (2) the plaintiff's threat to sue the defendant for interference with her employment; (3) that the defendant and plaintiff owned a "love nest" at 918 Glenmore; and (4) that the defendant pursued a romantic relationship with the plaintiff.
The amended pleadings alleged that these matters reached members of the public including (1) secretaries in Drendel's and Wittenstrom's offices, who broadcast the faxes and thus had special access to the matters contained therein; (2) Haderer, the plaintiff's brother, whose knowledge of the private matters was "embarrassing and devastating" to the defendant; and (3), on information and belief, unknown individuals in the school district office or Haderer's insurance office (wherever the plaintiff faxed her May 9, 1991, letter) and in Drendel's law office.
On information and belief, the defendant alleged further that the faxes were sent via satellite and were intercepted by persons whose personal computers were equipped to enable them to receive such transmissions. The defendant alleged that fax transmission is not established as reliably confidential, as faxes are often delivered to the wrong persons.
In addition to the exhibits attached to his original pleading, the defendant attached a copy of the May 23, 1991, fax from Drendel to Wittenstrom. In this fax, Drendel touched on the last two of the four allegedly private matters noted above. Also, Drendel stated that the plaintiff had none of the defendant's belongings. Haderer and others had helped her move out of 918 Glenmore, and any belongings they had removed inadvertently had been returned to the defendant. Drendel also reminded Wittenstrom that the defendant's attempts to discredit the plaintiff through the press or the board of education could result in the plaintiff taking legal action.
The court denied the defendant's motion to reconsider and found that there was no just reason to delay enforcement or appeal of the order (see 134 Ill.2d R. 304(a)). The defendant timely appealed.
The public disclosure of private information is one species of the tort of invasion of privacy. (Miller, 202 Ill.App.3d at 978, 148 Ill.Dec. 303, 560 N.E.2d 900; Restatement (Second) of Torts § 652A, at 376 (1977).) We agree with the parties that the first district case of Miller, 202 Ill. App.3d 976, 148 Ill.Dec. 303, 560 N.E.2d 900 is the principal authority in Illinois on the elements of this cause of action.
In Miller, the plaintiff alleged that her employer had invaded her privacy when, without her authorization, the employer told her co-workers that she had undergone mastectomy surgery. The circuit court dismissed her complaint on the ground that she had failed to state any cause of action for the invasion of privacy. The appellate court reversed and remanded the cause for trial. Insofar as relevant here, the appellate court held that the plaintiff had adequately pleaded a cause of action for the public disclosure of private information.
Miller held generally that, to state a cause of action for the public disclosure of private facts, a plaintiff must allege that (1) the defendant published, (2) private (not public) facts, and (3) the matter published was such that the publicity would be highly offensive to a reasonable person. (Miller, 202 Ill.App.3d at 978, 148 Ill.Dec. 303, 560 N.E.2d 900.) In Miller, the defendant conceded that the plaintiff had met the second *625 requirement, and the court concluded without difficulty that, as the matter disclosed was a personal and sensitive one, the plaintiff had adequately pleaded the third element of the tort. Thus, Miller focused its discussion on what a plaintiff must allege to satisfy the requirement of publicity.
Miller adopted a modification of the Restatement's definition of publicity. Under the Restatement test, there is no "publicity" unless "the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." (Restatement (Second) of Torts § 652D, Comment a, at 384 (1977).) Under Miller, egregious conduct resulting in disclosure to a limited audience is actionable if "a special relationship exists between the plaintiff and the `public' to whom the information has been disclosed [such that] the disclosure may be just as devastating to the [plaintiff]." Miller, 202 Ill.App.3d at 980, 148 Ill.Dec. 303, 560 N.E.2d 900.
In support of this flexible standard, Miller cited McSurely v. McClellan (D.C.Cir. 1985), 753 F.2d 88, and Beaumont v. Brown (1977), 401 Mich. 80, 257 N.W.2d 522.
In McSurely, the Federal appellate court ruled that under the particularly egregious facts of the case the coercive disclosure of highly sensitive and personal matters to an audience of a single person was actionable. There, the plaintiffs, husband and wife Alan and Margaret McSurely, sued various Kentucky and Federal officials on several grounds. One was invasion of the wife's privacy. Federal investigators seized the wife's personal papers, including love letters from before her marriage from columnist Drew Pearson. These letters revealed intimate details of the romance between Pearson and the woman Pearson called "Dearest Cucumber." The Federal investigator then stood next to Alan McSurely, forcing him to read these letters and other of his wife's personal papers of which he had previously been unaware. The revelations embarrassed both plaintiffs and eventually helped to undermine their marriage.
In discussing the invasion of privacy claim, a matter of State law, McSurely recognized that Kentucky courts were flexible in applying the Restatement test for publicity. "Egregious conduct" was actionable even where it did not precisely fit the Restatement categories; indeed, even publication to a single person could be actionable. (McSurely, 753 F.2d at 112.) Such was the case here, where the disclosure was particularly cruel and coercive, involved extraordinarily intimate aspects of the wife's past, and served no legitimate purpose.
Similarly, Beaumont held that the circumstances are relevant to a determination of whether private facts have been "publicized." Thus, disclosure to a single person could be actionable "publicity" given strong enough circumstances. In Beaumont, the plaintiff was a member of the United States Army Reserve. The defendants, his employers, wrote a letter to the army reserve. These letters severely criticized the plaintiff's job performance and character. The supreme court of Michigan held that the defendants were not entitled to summary judgment. The court explained that the plaintiff had raised an issue of fact as to whether disclosure to the army reserve administration constituted "publicity." The court rejected a "numbers game" as a test of "publicity." (Beaumont, 401 Mich, at 104, 257 N.W.2d at 531.) It reasoned that, even though the derogatory letter was itself addressed only to a single bureaucrat, the plaintiff raised the inference that the letter circulated through the bureaucracy and resulted in official action against him.
Beaumont stressed that, in a determination of whether certain information has been "publicized," the relationship between the audience and the plaintiff is at least as important as the size of the audience. Thus, "[a]n invasion of a plaintiff's right to privacy is important if it exposes private facts to a public whose knowledge of those facts would be embarrassing to the plaintiff. Such a public might be the general public, if the person were a public figure, or a particular public such as fellow employees, *626 club members, church members, family, or neighbors, if the person were not a public figure." Beaumont, 401 Mich, at 105, 257 N.W.2d at 531.
Citing the language we have quoted, the Miller court held that the plaintiff had stated a cause of action for the public disclosure of private facts. Although the plaintiffs fellow employees could not be equated with the general public, the disclosure of intimate personal matters to people with whom she had such a close and distinctive relationship satisfied the requirement of "publicity." The court stressed that this special relationship could make even the relatively limited disclosure particularly embarrassing or devastating to the plaintiff. Miller, 202 Ill.App.3d at 976-77, 148 Ill.Dec. 303, 560 N.E.2d 900.
We now apply Miller to the case at bar. A reviewing court should affirm the dismissal of a pleading for failure to state a cause of action only if no set of facts based on the pleading will entitle the claimant to relief. (Bank of Northern Illinois v. Nugent (1991), 223 Ill.App.3d 1, 9, 165 Ill.Dec. 514, 584 N.E.2d 948.) It is clear to this court that all the well-pleaded facts of the counterclaim and third-party complaint do not amount to a cause of action for the public disclosure of private facts. We believe that the defendant's pleadings are legally deficient as to all three elements of the tort.
First, we believe the trial court correctly decided that, as a matter of law, the defendant did not sufficiently allege the public disclosure of private facts. We need not plunge into a discussion of the comparative reliability of mail and fax communications. In this regard, the defendant has alleged no more than the possibility that unknown individuals might have accidentally received or perhaps eavesdropped upon the otherwise private and confidential communications between the plaintiff's attorney and the defendant's attorney. Such possible interception by nobody in particular constitutes neither disclosure to the public (as the Restatement requires) nor disclosure to a limited "public" with whom the defendant might have a special relationship (the Miller test).
That secretaries in the attorneys' offices helped to broadcast such faxes cannot reasonably support the defendant's claim of "publicity." Such clerical workers stand in no special relationship to the defendant. Equally as important, to allow the defendant to characterize such transmission as "publicity" would make practically any confidential correspondence between law offices actionable. To make such legitimate and essentially private communications actionable invasions of privacy would be an absurd and intolerable expansion of the tort. Because the free flow of information is important to our society, courts should proceed with caution in defining what communications constitute invasions of privacy. Leopold v. Levin (1970), 45 Ill.2d 434, 440, 259 N.E.2d 250; Bradley v. Cowles Magazines, Inc. (1960), 26 Ill. App.2d 331, 334, 168 N.E.2d 64.
Finally, the alleged disclosure to the plaintiffs brother does not constitute actionable publicity. We find it remarkable that the defendant would sue his former paramour on the basis that he had a "special relationship" with her brother. Moreover, the exhibits upon which the defendant relies make the conclusion inescapable that Haderer learned little or nothing of which he was not already well aware, given that he removed many of her belongings from the "love nest" at 918 Glenmore.
The defendant's pleadings also fail to allege that private facts were disclosed, thus leaving the second element of the cause of action unsatisfied as a matter of law. We note that, insofar as the defendant alleges that faxes from the plaintiff's attorney to his attorney may constitute an invasion of his privacy, the defendant, by authorizing his own attorney to send the plaintiffs attorney a fax, ought to have reasonably foreseen the allegedly tortious communication as a response. We find it ironic that the defendant claims personal privacy rights (particularly vis-a-vis the plaintiff) in his communications with public officials regarding plaintiff's employment recordsparticularly as the defendant himself *627 threatened to disclose sensitive information, involving the parties' personal relationship, to the school board and to the mass media.
Finally, we hold that the defendant's pleadings failed to raise the third element of the tort of public disclosure of private information, i.e., that the matter made public was highly offensive to a reasonable person (see Miller, 202 Ill.App.3d at 978, 148 Ill.Dec. 303, 560 N.E.2d 900). As we have noted earlier, the defendant's own disclosures or threatened disclosures are the cause of most if not all of the communications he now claims are highly offensive. This is not a case where one party has gratuitously publicized matters in which another party had a legitimate expectation of privacy. From the defendant's own pleadings and exhibits, we conclude that he has failed to allege that either the plaintiff or the third-party defendants made disclosures that he could reasonably find highly offensive.
Having concluded that the trial court properly dismissed the defendant's counterclaim and third-party complaint for invasion of privacy, we now turn to the request by the plaintiff and the third-party defendants for sanctions on appeal. Pursuant to Supreme Court Rule 375(b) (134 Ill.2d R. 375(b)), a reviewing court may impose sanctions against a party for an appeal which is either frivolous or not taken in good faith. An appeal will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law. (134 Ill.2d R. 375(b); State Farm Fire & Casualty Co. v. Miller Electric Co. (1992), 231 Ill.App.3d 355, 360, 172 Ill.Dec. 890, 596 N.E.2d 169.) An appeal will be deemed to have taken for an improper purpose if the primary purpose of the appeal is to delay, harass, or cause needless expense. 134 Ill.2d R. 375(b).
Rule 375(b) sanctions are penal and should be applied only to those cases falling strictly within the terms of the rule. (In re Marriage of Sykes (1992), 231 Ill. App.3d 940, 949-50, 173 Ill.Dec. 347, 596 N.E.2d 1226.) We appreciate the misgivings with which the plaintiff and the third-party defendants view the defendant's motives for bringing this appeal. We also must state that, at best, the defendant's arguments on appeal approach frivolity, as they find scant support in existing law.
Alternatively, the tort of public disclosure of private information has received very little definition or elaboration from the courts of Illinois. The appeal is from a dismissal for failure to state a cause of action, and thus we are called to make an independent ruling of law rather than a deferential review of a discretionary trial court ruling. Under these circumstances, we choose not to find this appeal frivolous.
The judgment of the circuit court of Kane County is affirmed.
Affirmed.
INGLIS, P.J., and BOWMAN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2216071/ | 59 Ill. App.3d 177 (1978)
375 N.E.2d 445
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
v.
MICHAEL NOLAN, Defendant-Appellee.
No. 77-371.
Illinois Appellate Court First District (2nd Division).
Opinion filed April 11, 1978.
*178 Bernard Carey, State's Attorney, of Chicago (Timothy Quinn, Assistant State's Attorney, of counsel), for the People.
No appearance for appellee.
Affirmed in part and reversed in part.
Mr. JUSTICE DOWNING delivered the opinion of the court:
The State appeals from an order of the trial court granting defendant's motions to suppress a statement and certain physical evidence unlawfully seized by the Chicago police. The issue on appeal is whether the trial court's findings of fact and conclusions of law were manifestly erroneous.
The relevant facts established at the lengthy hearing on the motions are that on November 21, 1974, the slain body of Julie Oswald was found near Bogan High School in Chicago. Defendant, Julie's boyfriend, was arrested and subsequently indicted for her murder.
Chicago police investigator Thomas Quinn testified that on November 21, 1974, he was assigned to Area Three Homicide. Quinn and his partner, Investigator John Solecki, were assigned to investigate the Oswald homicide. At the location where the body was found, Quinn obtained a description of a man seen leaving the scene from Mrs. May Karavides, an elderly woman who spoke English through an interpreter, and from other police officers at the scene. That description was of a male white, approximately five feet 10 inches tall, thin build, long blond hair, dark clothing, carrying a dark object, dark pants, and shoes.
At 7 p.m. that evening, Quinn saw defendant at Holy Cross Hospital with decedent's mother and sister. Quinn was informed by another police officer that defendant was decedent's boyfriend. Quinn then spoke with defendant for approximately 30 to 45 minutes. He asked if defendant had seen decedent earlier that day. Defendant replied that he had last seen her that morning, as she boarded a bus at 79th Street and Pulaski to go to work. Quinn did not inform defendant that he was a suspect in the murder, nor did he or anyone else then advise defendant of his rights. According to Quinn, defendant was free to leave the room at this time. Following their conversation, Quinn asked defendant to accompany his *179 partner and him back to Area Three. Quinn informed defendant he was the last person to see decedent alive and asked him to cooperate in the investigation. Defendant said he was glad to help.
Quinn and Solecki then drove defendant to Area Three. Defendant rode in the back of the car, alone. He was not handcuffed. When they arrived at Area Three, they informed defendant that because he was the last person to see decedent alive, he could become a prime suspect in the murder. Solecki then informed defendant of his rights.
Quinn testified that defendant was questioned in an interview room at the police station beginning at approximately 7:30 p.m. At this time defendant was still free to leave. At 9 p.m., however, some conflicts developed in defendant's story as to his whereabouts at the time of the murder. At the hospital, defendant had told Quinn and Solecki that he had met decedent while shopping alone in a bookstore at Ford City, and that he had never gone farther west than Karlov Street. Defendant's second story was that he was with decedent and one Vince Navarro in a bookstore at 79th and Pulaski. Later, he said that he had gone further west than the east side of Karlov Street. Defendant was placed under arrest at 9 p.m.
At approximately 10:30 p.m., Quinn took defendant to Area One homicide for a lineup. The lineup was to be held at Area One because there was no one-way mirror in the lineup room at Area Three, and because the witnesses who were to view the lineup were an elderly woman and two very young girls. Defendant was not handcuffed during the ride to Area One. The five-man lineup was viewed by Mrs. Karavides and by Gail and Cheryl Mitchell. No identification was made.
After the lineup, defendant was taken to the 8th Police District, the area in which the homicide occurred. There defendant was fingerprinted, processed, and photographed. Defendant was handcuffed during the ride from Area One to the 8th District because, in Quinn's words, defendant was then under arrest for "investigation of murder."
During one of the car trips, Quinn testified that defendant asked to speak to a friend of his, a priest. Quinn told him it would be all right, but that the priest was probably in bed by that time. Defendant did not at any time ask for an attorney.
Quinn testified that by 1:30 a.m., the police had contacted Vince Navarro who denied having been with defendant that morning. Defendant was confronted with Navarro's denial. He then indicated he would tell still another story.
Elizabeth Nolan, defendant's mother, testified next that she saw police cars outside of the Oswald home at 5:15 p.m. on November 21, 1974, as she returned from a shopping trip. She sent defendant there to find out what was happening. Between 6:15 and 6:30 p.m., her son and his friend *180 Michael Cusane returned. Defendant was crying and screaming that someone had killed his girl friend. He then returned to the Oswald's because he said the police wanted to talk to him.
Mrs. Nolan testified that at approximately 7 p.m., four police officers in civilian clothes knocked at her back door. One man showed an identification card and said they were police officers. At the same time, four more police officers knocked at the front door and were admitted. Mrs. Nolan testified that the last four left when they discovered the first four officers were in the house. Mr. Nolan was also present. No search warrant was shown to Mrs. Nolan. She told the officers that she had not seen defendant leave the house that morning, but that she first saw him shortly after 1 p.m., when he returned home to change clothes. When he came in he was wearing dark pants, a dark blue corduroy jacket, and black shoes. One police officer asked to see the clothes and she said "yes." Mrs. Nolan took the officers into defendant's room and retrieved the clothing for them. She could not remember which shirt her son had worn that morning, but found none missing from the closet. One of the police officers accompanied her into the bathroom where she dumped out a clothes hamper. None of defendant's shirts were in the hamper. When they left, the police ook the slacks, shoes, and jacket, as well as a light blue denim jacket and some sweatshirts.
Mrs. Nolan asked the police to take her to the police station with them so that she could see her son. One of the officers gave a business card with an address and telephone number to Mr. Nolan so that he would know where his wife was. The officer assured Mr. Nolan that his wife would be escorted home. Mrs. Nolan arrived at Area Three about 8:15 p.m. She did not see her son for five hours. While she waited she spoke with Investigator Rochowicz. Rochowicz asked Mrs. Nolan if her son used drugs or alcohol and if he had ever been to a psychiatrist. He told her, "I think you have a sick son on your hands." He told her that her son had been involved in a quarrel in a restaurant and that there was a witness who had given this information to the police. He also told her that an elderly woman in a wheelchair who did not speak English, had seen her son throw the body over a fence. Mrs. Nolan asked repeatedly to see her son. Each time she was told she could not. Rochowicz suggested that she go home, but she insisted on remaining until she saw her son. Finally, she was allowed to see him shortly after 1 a.m. on November 22. Just before she entered the room where her son was being held, she asked Rochowicz what she could say to her son. "He said, `Everything what I told you and what you saw you can tell your son now.'" When she entered the room where defendant was being held, he yelled, "Ma, go. Get me a lawyer," three times. She responded, "You will listen to me now. I want to hear from you, and I got a lot to tell you. Now, tell me where you was mitt [sic] *181 Julie, where you left her." He told her he had met Julie in Barnaby's, but there had been no quarrel. He had had only one beer. Then she said, "Look, there is a eye-witness, an elderly lady saw you throwing her body over the fence." He replied that the police had lied to her. She responded, "The police cannot lie. They stated to me they have two witnesses and one eye-witness, and once in your life, tell me the truth. Are you on dope? And maybe you're sick and I don't know." He denied that. She then said, "Maybe you don't know what you're doing when you were out or drink all over, like Mr. Rockowitz [sic] explained me, and take dope. You don't know what can happen." She repeated this line of questioning a second and a third time. Finally, her son said, "Ma, go home, ask Mr. Bogden. You believe them." He told her that Mr. Bogden had seen Julie and him near a public library. She said, "What are you doing in the library? Since when you go library?" He said that he and Julie had said good-bye in front of the library, and then she got on a bus to go to work. He went into the library to use the bathroom. Then Mrs. Nolan got up and said, "Only God can help you." She then walked out of the room.
Mrs. Nolan testified that she looked at her son's hands during the conversation because he was sketching out his whereabouts with his hands on the table. She saw that they were smeared with what appeared to be ink, but she saw no cuts on his hands. When she turned away from her son, Rochowicz was standing in the doorway. She then had the following conversation with him:
"He asked me, `What did you son told you?' I said, `My son was lying to me, and you have two witnesses and an eye-witness. You here me from a lawyer.' He said, `Do you have a lawyer?' I said, `No. Do you have one in the house?' He said, `No. They're also very expensive.' I say, `Oh, my God.' He said then, `Don't worry about that, he will get Public Defender.' I say, `What are those?' He said, `They're appointed from the State, and that's all you can do. Go home now.'"
Mrs. Nolan then went home.
Assistant state's attorney James Klein testified that he arrived at Area Three at approximately 2 a.m. on November 22, 1974. He advised defendant of his rights. A court reporter did not arrive until approximately 3 a.m. Defendant was again advised of his rights. Defendant made no statement to Klein that he was being coerced or tricked into making a statement by the police, or that he wanted a lawyer.
Defendant testified that he arrived at the Oswald residence at 6:15 that night and spoke with decedent's sister and Officer Rochowicz. He was told that Julie had been killed. He told the police he wanted to go home to tell his mother, but Rochowicz told him not to leave because he was the last person seen with decedent and he would have to go for a lineup and *182 questioning. Defendant left the Oswald's anyway, with Michael Cusane, and went home. He told his parents what had happened and that he had to go back to the Oswald's because the police wanted to question him. He returned to the Oswald's and accompanied Mrs. Oswald to Holy Cross Hospital. He had been at home less than five minutes.
At the hospital, some plainclothes police officers pulled him into a corridor and told him to sit down. Then they took him to an interview room. Investigator Solecki asked him if he knew about murder, manslaughter, and involuntary manslaughter. Defendant replied that he knew about murder, but did not know about voluntary and involuntary manslaughter. Solecki told defendant he had to go down to Area Three Homicide with them. Defendant said he wanted to stay at the hospital with Mrs. Oswald, but Solecki told him he could not stay there. He was at the hospital a total of less than 15 minutes.
Defendant left the hospital with Solecki, Quinn, and one other police officer. As he walked out of the hospital, there were "two police officers on the side of me, one in front, and a bunch in back." They paused for a moment before a man with a camera. He was taken to Area Three in an unmarked police car. Defendant was handcuffed behind his back at this time. At Area Three he was placed in a room. His handcuffs were removed. Then he was questioned by Solecki, Quinn, Officer Kunz, and various other police officers, numbering 15 in all. He was never told that he was being charged with anything. Solecki told him that he "did the crime" and that there were three eyewitnesses. He was questioned until 8:30 or 8:45, when he asked for an attorney because he didn't want to talk anymore. The police officers then called him a "jackoff," said that he was the boyfriend, and that he was guilty. Solecki grabbed him, threw him against the wall, and began to curse him. He called defendant an "asshole" and accused him of lying because his jugular veins and the veins on his forehead were coming out. At this point, defendant again asked for an attorney. He was told, "No way." After Solecki left, defendant again asked Quinn for a lawyer. Then Quinn left, and two more officers came in and asked him questions. He also told these men he wanted an attorney. After a while, these officers left the room, and three more came in and "that's how it kept going all night."
Between 10 and 11 p.m., he was taken to Area One for the lineup. He was asked to change into the clothing the police had taken from his home. After the lineup, Kunz told him that he had been identified by the three witnesses, and that only he (Kunz) could help defendant now. Kunz said it would help if he confessed. He refused because he had done nothing wrong. Kunz then said, "Well, there's nothing more I can do. I'm going to let Officer Solecki come in here and you know how he is." Solecki then *183 came into the room, again called defendant a "jackoff," pulled him from the chair in which he was sitting, and threw him against a wall.
Defendant testified that he was then taken to the 8th District police headquarters. Quinn took out an "arrest sheet" and told defendant that if he confessed, the charge would not be murder, but manslaughter or involuntary manslaughter. He again refused to confess. Quinn said that if he confessed, the charge would be manslaughter and he would get a padded cell with a television and a rug. Quinn then asked him if he had ever been in a bullpen. He said no. Quinn then said, "Well, there is 50 to 100 blacks in there and they like little white boys." Defendant then asked to speak to his friend, Father Griffin. Quinn told him the priest would be asleep, and that if he had heard what was going on, he would have come down. Quinn refused to call Father Griffin.
They returned to Area Three for more questioning. Finally, he was allowed to speak to his mother. Defendant's account of his conversation with his mother corroborates her account. After his mother left, Quinn, Solecki, and Kunz came in and again asked him if he wanted to confess. He refused, and they left the room. Kunz came back in and told him that he would be charged with the murder because he was the boyfriend, and "the jury would find him guilty anyway." Then Kunz suggested what he could say:
"Q. What did he tell you you could say?
A. If I he asked me if I ever had sexual relations and things of that nature and then he said that if I said something like, I went over a fence with Julie Oswald and we were climbing over that and she fell and struck her head and I panicked and ran, a jury would see that it was panic and nothing could be done and I just ran, within a month, I would be out of jail. Otherwise, I was going to prison."
Kunz reviewed this story with defendant for 15 minutes. He then left the room to speak with the other officers. Then Quinn, Solecki, Kunz, and two other police officers came in. Quinn asked if he was now ready to give a statement. They then left the room as defendant and Kunz went over the statement he would give one more time. He then related the statement to the assistant state's attorney as Kunz had instructed him.
Defendant testified that he was not given Miranda warnings until 2:30 a.m., when the assistant state's attorney took his statement. He maintained that he did not understand those rights.
With regard to the motion to suppress physical evidence, defendant testified that he paid $20 per week to his parents as rent for his room, until he had been laid off of his job. He testified the house was a single-family, one-story residence with four bedrooms; that he had one of the *184 bedrooms; that his parents had access to his room; that his mother did his laundry; and that he never told his parents to keep other people out of the room. He did not consent to the search of his room by the police.
Investigator Solecki testified that he advised defendant of his rights at 7:30 p.m. He denied striking defendant or any other mistreatment. He denied that defendant had ever asked for an attorney; that he had asked defendant if he knew about murder, manslaughter, and involuntary manslaughter; and that defendant was handcuffed during the ride from the hospital to Area Three. He advised defendant of his rights upon their arrival at Area Three because he knew that defendant was the last person to see decedent alive and he felt, as an experienced police officer, it was advisable to do so.
John Herman, another police investigator assigned to Area Three, testified that he went to the Nolan home with Investigator Rochowicz at approximately 6:30 p.m. on November 21, 1974. They were admitted to the house by Mrs. Nolan after they identified themselves as police officers. He testified that Mrs. Nolan was very cooperative in locating the clothing. At the time they entered the house, the officers had a description of the clothing worn by the individual seen leaving the location where the body was found. The clothing seized fit that description. They did not know at that time whether or not defendant was under arrest.
Investigator Kunz testified that he had a brief conversation with defendant in an interview room at Area Three, during which he informed defendant of his rights. Kunz then left the room and did not again see defendant until after he had given his statement. Kunz denied promising defendant leniency, striking him, or having seen any other police officer strike defendant. He never suggested to defendant that he give a statement that decedent's death was an accident.
Following the hearing, the trial judge suppressed the statement as the fruit of an unlawful arrest and the clothing as the product of an unlawful search. The court made the following findings of fact: (1) Defendant's arrest took place at the hospital at 7 p.m. on November 21, 1974. (2) At that time the police lacked probable cause to make an arrest. The detention of the defendant was purely investigatory and led to the statement. (3) There was no break in the causal connection between the unlawful arrest and the statement. (4) Defendant's mother did not consent to the search of her son's room. The court characterized Mrs. Nolan as a "highly nervous, law-abiding, unsophisticated woman who has a unique attitude toward police officers," who merely acceded to the demands of the police to search her son's room.
I.
1 Defendant, the appellee, has not filed a brief in this court. Under First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, *185 345 N.E.2d 493, the court has its choice of three actions: we may consider the merits of the appeal; we may search the record for reasons to affirm the judgment of the trial court; and, we may reverse the judgment of the trial court if the appellant's brief demonstrates prima facie reversible error, and the contents of the brief find support in the record. Because of the fundamental nature of the issues raised by this record, and because in our opinion the State's brief fails to present a case of prima facie reversible error, we shall consider the merits of the appeal.
II.
Motion to Suppress Statement
The State contends that the trial court's findings of fact and conclusions of law are manifestly erroneous, and that the evidence conclusively established that defendant was not arrested until 9 p.m., after he had given the police conflicting reports as to his whereabouts at the time of the murder.
2 A police officer may arrest a person when he has reasonable grounds to believe that the person is committing or has committed an offense. (Ill. Rev. Stat. 1975, ch. 38, par. 107-2(c).) "Reasonable grounds" has the same substantive meaning as "probable cause." (People v. Wright (1974), 56 Ill.2d 523, 528, 309 N.E.2d 537; People v. Lawson (1st Dist. 1976), 36 Ill. App.3d 767, 770, 345 N.E.2d 41.) The test is whether a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe a person committed an offense. The trial courts should not apply the test of sufficient evidence to convict, must deal with probabilities, and are not disposed to be unduly technical. People v. Clay (1973), 55 Ill.2d 501, 504-05, 304 N.E.2d 280.
The elements of a valid arrest are present when the police inform the defendant of a violation, he submits to their control, and when the evidence clearly shows that the officers intend to effect an arrest and that the defendant understood them. See People v. Wipfler (1977), 68 Ill.2d 158, 165, 368 N.E.2d 870, and cases cited therein.
Our review of the record leads to the conclusion that whether there was probable cause to arrest defendant for the murder of Julie Oswald at the hospital at 7 p.m., and whether the elements of a valid arrest were then present depends on whether the evidence presented by the defendant is believed, or whether the evidence presented by the State is believed. The State contends that at 7 p.m., the police knew that defendant was a close friend of the decedent; that he had been with her prior to her death; that he was the last known person to see her alive; that he fit the general description of the person seen leaving the location where the body was found; that the victim's body was found near a jagged piece of redstained concrete; and, that defendant had scrape marks, a blister, and a *186 clean band-aid on his right hand. However, as was the case with all of the evidence at the hearing, the evidence as to the scrape marks, blister, and band-aid was in sharp conflict. Mrs. Nolan testified that she saw no such marks on her son's hands. Officer Quinn testified that he saw the marks, and that a band-aid was visible on defendant's hand in the photograph of the lineup, but admitted that the marks did not appear in another photograph of defendant's hands taken that night.
In juxtaposition, the defendant's evidence was that he was taken aside by the police officers nearly immediately after his arrival at the hospital, asked if he knew about murder, manslaughter, and involuntary manslaughter; told that he had to accompany them to Area Three Homicide and that he could not remain with Mrs. Oswald at the hospital; led out of the hospital surrounded by police officers; handcuffed; and driven away in a police car.
3 The trial judge was in a far better position than we to judge the credibility of the witnesses and their demeanor on the witness stand. (See People v. Rogers (5th Dist. 1975), 25 Ill. App.3d 7, 11, 322 N.E.2d 563.) He was obviously impressed with the credibility of the defendant's witnesses, and expressly stated that he found the testimony of the police officers "less than credible." We would be reluctant to substitute our judgment for his. Given the facts as he saw them, the court's conclusion that defendant was arrested for purely investigative purposes was a reasonable inference to be drawn. This conclusion is not manifestly erroneous. (See People v. Clay (1973), 55 Ill.2d 501, 505, 304 N.E.2d 280.) The trial court found that the statement of the defendant was made in violation of his Fourth Amendment rights and should be "suppressed under the unlawful arrest theory"; and that the statement could not be considered as a "free and voluntary act" of the defendant because of the "actions of the police department in this matter." The court's action in ordering the suppression of the statement was correct. Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407; People v. Wilson (1975), 60 Ill.2d 235, 326 N.E.2d 378; People v. Hornal (5th Dist. (1975), 29 Ill. App.3d 308, 315-18, 330 N.E.2d 225; see also Brown v. Illinois (1975), 422 U.S. 590, 598-600, 45 L.Ed.2d 416, 95 S.Ct. 2254.
4 The State also takes issue with the trial court's finding that the statement was the result of coercive police tactics. The court found that the defendant, then age 19, was placed in custody for a period of eight hours, subjected to interrogation repeatedly and by numerous police officers, moved around the city, placed in a lineup at which none of the witnesses identified him, lied to, frightened, and psychologically abused. The court also found that defendant's mother was prevented from seeing him, lied to, and turned into a tool for the police to break him down. The *187 State contends these findings are also manifestly erroneous. The State bases its argument solely on the evidence it presented at the hearing, which, as we have noted, was in substantial conflict with that presented by the defendant. The issue here is also the credibility of the witnesses. It is clear that the record contains sufficient evidence of these abuses, if believed by the trier of fact, to sustain the conclusions reached. The findings and conclusions of the trial court on the issue of voluntariness are not manifestly erroneous.
For the reasons stated, that portion of the trial court's order which suppressed the statement given by the defendant to the police is therefore affirmed.
III.
Motion to Suppress Physical Evidence
The State next contends that the trial court's conclusion that Mrs. Nolan did not consent to the search of defendant's bedroom is without support in the record, and that the court's order suppressing the clothing removed from defendant's bedroom should therefore be reversed.
5 When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission was obtained from a third party who possessed common authority over, or other sufficient relationship to, the premises or effects sought to be inspected. (United States v. Matlock (1974), 415 U.S. 164, 171, 39 L.Ed.2d 242, 249-50, 94 S.Ct. 988, 993; People v. Stacey (1974), 58 Ill.2d 83, 87-88, 317 N.E.2d 24; People v. Johnson (1st Dist. 1974), 23 Ill. App.3d 886, 891, 321 N.E.2d 38.) The authority which justifies third-party consent does not rest upon the law of property, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right, and that the others have assumed the risk that one of their number might permit the common area to be searched. (Matlock, 415 U.S. 164, 171 n. 7, 39 L.Ed.2d 242, 250 n. 7, 94 S.Ct. 988, 993 n. 7; Stacey, 58 Ill.2d 83, 88.) The question of whether consent has been given is a factual matter to be initially determined by the trial court, and where the evidence on the issue is in conflict, this court will accept the finding below unless it is clearly unreasonable. People v. Haskell (1968), 41 Ill.2d 25, 30, 241 N.E.2d 430.
On the record before us, there is no question that Mrs. Nolan had authority to consent to a search of her son's bedroom. In arguing the motion to suppress before the trial court, counsel for the defendant *188 maintained that People v. Nunn (1973), 55 Ill.2d 344, 304 N.E.2d 81, was dispositive. Nunn, however, is clearly distinguishable. In Nunn, the supreme court, three justices dissenting, upheld the suppression of evidence obtained during a warrantless search of the defendant's room in his parents' house to which his parents "consented." Unlike the case at bar, Nunn had moved out of the room 10 to 14 days prior to the search, had locked the door, and had instructed his mother that no one was to enter. In the case at bar, defendant testified that he did not lock the door to his room, and that he had not instructed his parents to keep anyone out. In fact, he acknowledged that his parents had access to his room.
6 The trial court suppressed the evidence, concluding that Mrs. Nolan had not consented to the search, but had merely acceded to the demands of the police to conduct a search. In reaching this conclusion, the trial court relied solely on the subjective factors attendant to Mrs. Nolan's demeanor on the witness stand. Such factors, by their nature, are not reflected in the record now before us. Nor can they be considered as a true reflection of Mrs. Nolan's state of mind, some months before, in her own home in the presence of her husband. Aside from the trial court's subjective analysis of Mrs. Nolan's state of mind during the search, the record reflects only that Mrs. Nolan was calm and cooperative during the search. In short, there is nothing in the record to support the trial court's conclusion that Mrs. Nolan did not freely consent to the search of her son's room. Given the state of this record, the conclusion of the trial court was unreasonable. Accordingly, that portion of the trial court's order which suppressed the physical evidence seized from defendant's bedroom is reversed.
Affirmed in part; reversed in part.
STAMOS, P.J., and McGLOON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2367356/ | 308 Pa. Super. 169 (1982)
454 A.2d 75
William BOLAND, Appellant,
v.
Mary Pamela LESKA.
Superior Court of Pennsylvania.
Submitted June 21, 1982.
Filed December 17, 1982.
Petition for Allowance of Appeal Denied March 22, 1983.
*172 Henry J. Lunardi, Philadelphia, for appellant.
Jon C. Sirlin, Philadelphia, for appellee.
Before WICKERSHAM, McEWEN and LIPEZ, JJ.
WICKERSHAM, Judge:
This is an appeal from an order of the Philadelphia County Court of Common Pleas, which awarded custody of Sean and Michael Boland to their mother, appellee Mary Pamela Leska. The pertinent facts and procedural history are as follows.[1]
Mary Pamela Leska and William Boland were married in 1964 and divorced in March of 1976. During their marriage two children were born to them; Sean in 1971, and Michael in 1975. At the time of their divorce it was agreed between them that Mary Pamela Leska should have custody of the two boys. Both parents subsequently remarried; Mary to Gerald Leska, and William to Mary Rose Cunningham Boland.
On June 14, 1977, William Boland went to the Leska home, examined the boys and discovered some bruises on Sean: he then took Sean to the Children's Hospital of Philadelphia where Sean was examined by Dr. Steven Ludwig. Dr. Ludwig thought the bruises might be the result of child abuse and so informed the local child protective services agency. William Boland took the boys to his home and refused to return them to the custody of their mother.
*173 Mary Pamela Leska subsequently filed a petition for a writ of habeas corpus seeking the return of the boys to her custody. On September 26, 1977, after a hearing, Judge William J. Lederer ordered the boys returned temporarily to their mother's custody. Numerous hearings were subsequently held at which many witnesses testified as to the boys' abilities, progress and best interests. On August 1, 1980, Judge Lederer issued an opinion and order awarding custody of the boys to Mary Pamela Leska except on certain holidays and vacation periods when their father would have custody. This appeal followed.
Appellant Boland frames the first question involved as follows:
Did the Hearing Court Err as a Matter of Law by Refusing to Consider the Testimony of Numerous Witnesses for Appellant.
Brief for Appellant at 3.
Boland asserts that the hearing court did not consider the evidence of several witnesses based on the following quotation from Judge Lederer's opinion:
The Court did not consider the testimony of witnesses Joan Taylor, Rosalind Ritchie, Sandra Calobrisi, Lois Roush, Reverend John Freeman and Dr. Anthony Pillegi on the issue of fitness or abusive conduct particularly germane or probative and was not persuaded in any direction by any of it.
Lower ct. op. at 75.
The lower court did not refuse to consider this evidence, as Boland asserts, but did consider it and did not find it particularly helpful.
"To constitute capricious disbelief [of a witness] there must be a willful deliberate disbelief of an apparently trustworthy witness, whose testimony, one of ordinary intelligence could not possibly challenge or entertain the slightest doubt as to its truth." Giordano v. Bianco, 210 Pa.Super. 469, 473, 233 A.2d 623, 625 (1967).
*174 Here, there is no evidence of such capricious disbelief of witnesses by the hearing court judge. The witnesses allegedly ignored by the hearing court were able to provide some information concerning the children, however, none of these witnesses provided information particularly germane to custody. The hearing court was correct in viewing the witnesses' testimony as not particularly helpful.
Appellant Boland frames the second issue involved as follows:
Did the Hearing Court Manifest Prejudice, Bias, and Ill Will Toward Appellant by Summarily Returning Sean and Michael Boland to the Leskas on September 26, 1977.
Brief for Appellant at 3.
Boland asserts that the hearing court displayed a bias against him by ordering that the children be returned to their mother based on the record before it on September 26, 1977.
The basis of Boland's claim that he should have custody of the two boys is that they were allegedly abused by Gerald Leska. The lower court concluded, in its findings of fact (Reproduced Record at 84-94), that the bruises and abrasions incurred by the boys were not the result of child abuse. As such allegations were the only basis for Boland's claim, and the hearing court concluded no child abuse occurred, it is difficult to see how the hearing court abused its discretion in returning the children to their mother, who had custody of them before the allegations were made.
Appellant Boland frames the third issue involved as follows:
Did the Hearing Court Abuse its Discretion and Err as a Matter of Law in Evaluating Appellant's Evidence of Child Abuse.
Brief for Appellant at 3.
Although an appellate court is not compelled to accept the hearing court's determination in a child custody dispute, it will defer to such determination, absent an abuse of discretion, if the hearing court judge has thoroughly *175 investigated the facts, that investigation is documented by a complete record and a comprehensive analysis is contained in his opinion.[2]Commonwealth ex rel. Montgomery v. Montgomery, 296 Pa.Super. 325, 328, 442 A.2d 791, 793 (1982). Here, the hearing court, in a ninety-seven page opinion, thoroughly reviewed the testimony concerning the alleged abuse of the two boys and concluded that the relatively minor injuries they had receive were generally the result of an assortment of typical childhood accidents and occurrences. Lower ct. op. at 61-71.
Two incidents, one resulting in a bruise on Sean's neck and the other involving the slapping of Sean, were the subject of further consideration by the hearing court. The court found that the neck bruise resulted from Gerald Leska grabbing Sean by his pajama top as a result of his frustration at Sean's refusal to answer his mother's questions concerning a missing key. There was no intent to cause a bruise to Sean's neck or otherwise injure him; *176 Leska merely sought to show Sean that he was angry. The bruise was minor and required no treatment other than usual skin care. The slapping incident also occurred as the result of disciplinary measures. Sean had lost a sweater and Gerald Leska slapped him once on the face. Leska immediately apologized to Sean and acknowledged during his testimony that the slap was an inappropriate punishment. No observable physical injury resulted from the slap.
The hearing court concluded that neither incident constituted child abuse. We agree. Parents or guardians may use corporal punishment to discipline their children so long as the force used is not designed or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation. 18 Pa.C.S. § 509(1); see also Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978). At some point, however, permissible corporal punishment no longer is such, but becomes malicious abuse; this point is reached when the parent or guardian acts with malicious intent in so punishing the child. Commonwealth v. Kramer, 247 Pa.Super. 1, 7, 371 A.2d 1008, 1011 (1977).
Presently, we find no evidence that Gerald Leska's motives in administering corporal punishment to Sean were improper. Both instances considered closely followed errant behavior by the child and neither involved extreme force or was part of a repeated course of unwarranted punishment. There was no abuse of discretion by the hearing court.
Appellant Boland frames his final issue as follows:
Did the Hearing Court Abuse its Discretion by delaying its decision for two years.
Brief for Appellant at 3.
In addressing this issue we note that the hearing court reinterviewed Sean[3] on March 1, 1980, and subsequently *177 issued its custody order and opinion on August 1, 1980. No new evidence of potential abuse of the boys, or any other evidence relevant to custody, was advanced during the period Boland complains of. We find no abuse of discretion.
The most important concern in any child custody case is the best interest and permanent welfare of the child. An appellate court must, in a custody matter, exercise an independent judgment based on the evidence and make such an order as right and justice dictate. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981).
We agree with the hearing court that both the Bolands and the Leskas have many fine qualities and that either household would be an excellent place for the boys to reside. A stable relationship with an established parental figure and a known physical environment is important to the development of a child. In deciding who should have custody of a child it is always essential to consider how long the child has spent with each of the parties. In the Interest of Tremayne Quame Idress R., 286 Pa.Super. 480, 493, 429 A.2d 40, 47 (1981). "[T]his court has long recognized that the removal of a young child from his environment is a factor which bears on its emotional well being . . . . Therefore, continued residence of children with one parent may be controlling." Hugo v. Hugo, 288 Pa.Super. 1, 6, 430 A.2d 1183, 1185 (1981). See also In re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982) (if custodial parent has taken care of child properly, court may surmise he will continue to do so) (Id., 304 Pa.Superior 82, 450 A.2d 111).
Both boys have lived with their mother since 1975, except for the short period in 1977 when their father took them. We agree with the hearing court that they have been properly cared for during this period and that to take them from their mother would be unnecessarily emotionally *178 disruptive to them. It is in the best interests of the boys to remain in their current custody situation.
Order affirmed.
LIPEZ, J., files a concurring opinion.
LIPEZ, Judge, concurring:
I agree generally with the majority's analysis, and specifically with their conclusion that it is in the boys' best interests that they remain in the custody of their mother. However, their use of an abuse of discretion standard (which appears in a number of this court's opinions,[1] as the majority opinion demonstrates) is incompatible with the broadest type of review and independent judgment effecting a just result mandated by a whole host of Supreme Court decisions. See, e.g., Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961). ("It is our duty not simply to determine from the record whether the trial court has abused its discretion but to examine all the evidence and render an independent determination.") See also the rejection of the abuse standard in: panel opinion by Spaeth, J. in L.D. v. B.D., 291 Pa.Super. 589, 436 A.2d 657 (1981); concurring opinions by Spaeth, J. in Commonwealth ex rel. Montgomery v. Montgomery, 296 Pa.Super. 325, 442 A.2d 791 (1982) and Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981); concurring opinion by Hoffman, J. in In re Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981); panel opinion by Brosky, J., in Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981). Nevertheless, the majority here expressly states that their independent review of the record confirms the finding of the hearing court, and I agree.
NOTES
[1] "[T]he order awarding custody is a final order, and, therefore, is the order from which any appeal to this court is to be taken . . . ." In re Custody of Frank, 283 Pa.Super. 229, 233, 423 A.2d 1229, 1232 (1980). See also Ray v. Ray, 293 Pa.Super. 216, 438 A.2d 614 (1981) (appeal from order granting custody permitted.)
Here, an order awarding custody of the children to appellee Mary Pamela Leska was entered on August 1, 1980. An appeal from the order was filed on August 27, 1980. This appeal is timely and proper.
[2] While this standard of review has been criticized in Robert H.H. v. Mcy L.H., 293 Pa.Super. 431, 434 n. 1, 439 A.2d 187, 189 n. 1 (1981), it has been cited with approval in a later case, In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982). In any event, our independent review of the record confirms the findings of the hearing court.
The concurring opinion criticizes the use of the standard of review enunciated in Commonwealth ex rel. Montgomery v. Montgomery, supra. The Pennsylvania Supreme Court has never specifically ruled on the standard, however, and we note that while the standard has been criticized, the cases following it have not been overruled or reversed on that basis.
We emphasize that under an independent review of the record, conducted in conformance with the standard advocated in the concurrence, we reach the same conclusions reached by the trial court, and so conclude for the same reasons expressed below.
It is difficult to conceive of circumstances in which the use of one standard or the other would lead to a different result. Under both standards the lower court is the finder of fact. It would be impossible for the hearing court to write a comprehensive analysis after a thorough investigation documented by a complete record that did not reach the same conclusions as an independent review by an appellate court: if the hearing court did reach a different conclusion in a case than the reviewing court it would only indicate that the hearing court's investigation was not thorough enough, or that its analysis was not comprehensive enough, or that the record was not complete enough.
[3] Michael was not interviewed because he is handicapped and unable to speak.
[1] I too joined in one such opinion, In re custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982). I now recant my error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1971506/ | 950 F. Supp. 783 (1996)
ELVIS PRESLEY ENTERPRISES, INC., Plaintiff,
v.
Barry CAPECE; Velvet, Ltd., a Texas Limited Partnership; and Audley, Inc., a Texas Corporation, Defendants.
Civil Action No. H-95-1197.
United States District Court, S.D. Texas, Houston Division.
December 30, 1996.
*784 *785 *786 *787 W. Mack Webner, Cynthia Clarke Weber, Sughrue Mion Zinn MacPeak and Seas, Washington, DC, for Elvis Presley Enterprises, Inc.
Wayne D. Davidson, Wayne D. Davidson & Associates, Houston, TX, Terry Fitzgerald, Fitzgerald Gartner & Follis, Houston, TX, William Dean Raman, Arnold White & Durkee, Austin, TX, John Paul Venzke, Houston, TX, for Barry Capece, Velvet Ltd., Audley, Inc.
ORDER
GILMORE, District Judge.
On the 25th day of November, 1996, the above-styled and numbered case came on for trial. Both sides appeared and announced ready for trial, and the case was tried to the Court from November 25 to November 26, 1996. At the conclusion of Plaintiff's case in chief, Defendants moved for judgment as a matter of law as to Plaintiff's claims. Defendants' motion was denied. The Court enters the following findings of fact and conclusions of law on the evidence presented.
I. BACKGROUND
Elvis Presley Enterprises ("EPE") is a Tennessee corporation formed in 1981 under the terms of a testamentary trust created by Elvis Presley ("Presley"). EPE is the assignee and registrant of all trademarks, copyrights, and publicity rights belonging to the Presley estate, including over a dozen United States federal trademark registrations and common law trademarks of Presley's name and likeness. None of these marks, however, are registered service marks for use in the restaurant and tavern *788 business. EPE's exclusive rights are marketed through a licensing program which grants licensees the right to manufacture and sell Elvis Presley merchandise worldwide. Products range from t-shirts to juke boxes. Merchandise sales have generated over $20 million dollars in revenue in the last five years and account for the largest percentage of EPE's annual earnings. In addition, EPE operates a mail order business and several retail stores at Graceland, the Elvis Presley home in Memphis, Tennessee, including two restaurants and an ice cream parlor. EPE recently announced plans to open an Elvis Presley night club in 1997 on Beale Street in Memphis and is also currently exploring the possibility of opening similar establishments throughout the world.
In April of 1991, Barry Capece ("Capece"), operating through the now dormant limited partnership, Beers `R' Us, opened a nightclub on Kipling Street in Houston, Texas named "The Velvet Elvis." The name, "The Velvet Elvis," referring to one of the more coveted velvet paintings, was selected for the powerful association it immediately invokes with a time when lava lamps, velvet paintings, and bell bottoms were popular. Capece intended the bar to parody an era remembered for its sensationalism and transient desire for flashiness. By taking bad, albeit once widely popular, art and accentuating it with gallery lights and by showcasing decor which mocks society's idolization of less than scrupulous celebrities, Capece ridiculed a culture's obsession with the fleeting and unimportant. His biting criticism provides his patrons with a constant reminder not to take themselves nor the world they live in too seriously.
In order to register the new bar's name, Capece filed a federal service mark application with the United States Patent and Trademark Office (PTO) on August 28, 1991. In December of 1992, pursuant to § 12(a) of the Trademark Act of 1946, the service mark was published in the Official Gazette of the Patent Office for the purpose of providing notice of the mark's pending registration and an opportunity for parties to object to the application's approval. Although aware of the service mark's publication in the Official Gazette, EPE did not file an opposition to the mark within the proscribed thirty day period. On March 9, 1993, registration for the service mark, "The Velvet Elvis," was issued to Capece for use in the restaurant and tavern business. For business reasons, however, the Kipling Street nightclub was closed in July of 1993.
Shortly thereafter, Capece began soliciting investors and quickly obtained the financial backing to reopen "The Velvet Elvis" at a different location. Another limited partnership, Velvet Ltd., comprised of general partner, Audley, Inc. and three limited partners, was formed to replace Beers `R' Us as "The Velvet Elvis'" new owner. With the necessary funds in hand, Capece leased a vacant sports bar on Richmond Avenue and began renovation in January of 1994. In July of that same year, EPE sent a cease and desist letter to Capece, threatening legal action if the bar opened with EPE's trademark, "Elvis," in its name. Capece was "All Shook Up." Despite the warning letter, however, the Richmond Street "Velvet Elvis" opened for business in August of 1994.
The bar currently serves a wide selection of liquors, including premium scotches, bourbons and tequilas. Food is available and menu items range from appetizers to complete entrees. "The Velvet Elvis" also claims to be the first cigar bar in Houston, specializing in high quality cigars. "The Velvet Elvis's" decor, consistent with its theme, features velvet paintings along with a widely divergent assortment of eclectic art. In addition to the velvet Elvis painting in the back lounge, velvet portraits of Stevie Wonder, Chuck Berry, Bruce Lee, and a collection of velvet nudes are hung throughout the bar. Also a part of the bar's decor are lava lamps, cheap ceramic sculptures, beaded curtains, and vinyl furniture. A painting of the Mona Lisa exposing her breasts hangs prominently in the front room. Centerfolds from Playboy magazines dating back to the sixties completely cover the walls of the men's room. Reminders of Elvis Presley, including numerous magazine photographs and a statute of Elvis playing the guitar, were at one time amongst the bar's decorations, but have since been replaced with art work unrelated to *789 Elvis or his music but equally as reminiscent of the forgotten era the bar attempts to mimic.
Pictures and references to Elvis Presley were also used in advertisements promoting the establishment until 1995. A number of ads contained actual pictures of Elvis Presley. Some ads made direct references to the deceased singer or Graceland using phrases such as "The King Lives," "Viva la Elvis," or "Elvis has not left the building." Others, while avoiding explicit references to Elvis or his persona, boldly displayed the "Elvis" portion of "The Velvet Elvis" insignia with an almost unnoticeable "Velvet" appearing alongside in smaller script. The bar's menu bears a caption, "The King of Dive Bars." A frozen drink, "Love Me Blenders," is served in the bar and the menu features items such as peanut butter and banana sandwiches, and "Your Football Hound Dog."
Plaintiff claims that the focal point of the bar's name, decor, and advertisements is Elvis Presley. To protect its exclusive right to license the commercial use of Elvis Presley's name, image, and likeness, Plaintiff filed suit against the Velvet, Ltd., Audley, Inc., and Capece, as owner of "The Velvet Elvis" service mark, on April 21, 1995. Plaintiff sued Defendants for unfair competition, trademark infringement, and dilution, under both the common law and the Lanham Act, 15 U.S.C. § 1051 et seq. (1994), and for infringement of its common law and corresponding statutory right of publicity. Plaintiff seeks injunctive relief, an accounting for profits, attorneys fees, costs, and an Order to the Commissioner of Trademarks to cancel Capece's registration for "The Velvet Elvis."[1]
Defendants, on the other hand, maintain that Plaintiff is merely a victim of "Suspicious Minds." Defendants contend that its valid, registered service mark presumptively entitles it to the exclusive right to use the mark in its business. Further, because the bar is meant and viewed as a parody, Defendants also argue that use of its service mark has not yet nor will in the future cause confusion as to the identity of the bar's owners, sponsors, or affiliates. Defendants claim that all possibility of confusion or dilution of Plaintiff's trademarks is negated with the customer's immediate appreciation of the bar's parodic message. Defendants also assert that their parody is protectable expression under the First Amendment, further warranting the Court's dismissal of all Plaintiff's claims. Alternatively, Defendants argue that to allow Plaintiff to succeed in this suit after its inexcusable delay in asserting opposition to Defendants' use of "The Velvet Elvis" as a service mark would result in extreme prejudice to Defendants and, consequently, that this action is subject to the equitable defenses of laches and acquiescence.
II. UNFAIR COMPETITION AND TRADEMARK INFRINGEMENT
Liability in this case will depend on whether Defendants have improperly utilized the Elvis moniker or Elvis's image and likeness in the promotion and operation of its tavern. Stated simply, the Court must determine whether Defendants stepped on Plaintiff's blue suede shoes. Plaintiff claims the inclusion of its "Elvis" trademark in the service mark "The Velvet Elvis" coupled with Defendants' use of the image and likeness of Elvis Presley in advertising, promoting, and rendering bar services creates confusion as to whether EPE licensed, approved, sponsored, endorsed or is otherwise affiliated with "The Velvet Elvis," constituting unfair competition and trademark infringement under the common law and Lanham Act.
To prevail on its trademark infringement and unfair competition claims under the Lanham Act, Plaintiff needs to demonstrate that Defendants' use of "The Velvet Elvis" service mark and the image, likeness, and other indicia of Elvis Presley was likely to cause confusion in the mind of the ordinary consumer as to the source, affiliation, or sponsorship of Defendants' bar. Conan Properties, Inc. v. Conans Pizza, Inc., 752 F.2d 145, 149 (5th Cir.1985); Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252, 258 (5th *790 Cir.1980) cert. denied, 449 U.S. 899, 101 S. Ct. 268, 66 L. Ed. 2d 129 (1980). The focus is whether a defendant's use of a mark and image creates a "`likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.'" Hormel Foods Corp. v. Jim Henson Productions, Inc., 73 F.3d 497, 502 (2d Cir.1996) (quoting Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978), cert. denied, 439 U.S. 1116, 99 S. Ct. 1022, 59 L. Ed. 2d 75 (1979)); see also Fuji Photo Film v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591, 594 (5th Cir.1985) (holding that likelihood of confusion is the central issue in any suit for trademark infringement or unfair competition). Liability is established if the evidence demonstrates that consumers will mistakenly believe the goods or services in dispute actually originated with the plaintiff or if it appears that plaintiff may have sponsored or otherwise approved of defendant's use. Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F. Supp. 785, 789 (E.D.N.Y.1983); see also Professional Golfers Ass'n of America v. Bankers Life & Casualty Co., 514 F.2d 665, 670 (5th Cir. 1975) (finding trademark infringement where a defendant uses a mark that falsely suggests affiliation with a trademark owner in a manner that is likely to cause confusion as to source of sponsorship). The governing standard for common law trademark infringement and unfair competition is the same "likelihood of confusion" test applied to claims brought under the Lanham Act. Universal City Studios, Inc. v. Kamar Industries, 217 U.S.P.Q. 1162, 1167, 1982 WL 1278 (S.D.Tex.1982).
Although the standards are similar, there is a fundamental distinction between trademark infringement and unfair competition. See Professional Golfers Ass'n of America, 514 F.2d at 671. Trademark law is based on a relatively narrow principal as compared to its frequent companion unfair competition its goal is to provide the holder of a trademark the exclusive right to use a phrase, word, symbol, image, or device to identify and distinguish his product. Jean Patou, Inc. v. Jacqueline Cochran, Inc., 201 F. Supp. 861, 863 (S.D.N.Y.1962), aff'd, 312 F.2d 125 (2d Cir.1963); see also 15 U.S.C. § 1114. Unfair competition, on the other hand, is more encompassing. "[A] claim of unfair competition considers the total physical image given by the product and the name together." Jean Patou, Inc., 201 F.Supp. at 863. "[E]very facet of the parties' selling program is relevant from the symbols, letters, pictures, colors, shapes, and sizes connected with the products to the advertising representations made." J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 2.02 (3d ed. 1992); see also 15 U.S.C. § 1125(a). Due to this difference, there may be some instances where "a defendant is guilty of competing unfairly without having technically infringed." Professional Golfers, 514 F.2d at 671.
In this circuit, courts have relied on the following list of factors in determining whether a defendant's use of a mark or image creates a likelihood of confusion:
(1) the type of trademark alleged to have been infringed;
(2) the similarity of design between the two marks;
(3) the similarity of the products or services;
(4) the identity of the retail outlets and purchasers;
(5) the identity of the advertising medium utilized;
(6) the defendant's intent; and
(7) evidence of actual confusion.
Conan, 752 F.2d at 149; see also Roto-Rooter Corp. v. O'Neal, 513 F.2d 44, 45 (5th Cir.1975). This list is neither exhaustive nor exclusive. In fact, "[t]he absence or presence of any one factor ordinarily is not dispositive; indeed, a finding of likelihood of confusion need not be supported by even a majority of the seven factors." Conan, 752 F.2d at 150. Further, the Court is not limited to the factors enunciated in Conan to determine likelihood of confusion and is free to consider other relevant evidence of confusion. Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d 1155, 1160 (5th Cir.1982). An additional factor that impacts the analysis in this case is whether Defendants' attempt *791 to parody the Elvis era and the eclectic bars of the sixties successfully eliminated the potential for a customer to be misled or whether it simply increased the likelihood of confusion. Nike v. "Just Did It" Enterprises, 6 F.3d 1225, 1228 (7th Cir.1993) (holding that parody is not an affirmative defense to trademark infringement and unfair competition claim but can be an additional factor in analyzing the likelihood of confusion); Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1485 (10th Cir.1987) (considering the product's use as a parody to be a factor weighing against the finding of a likelihood of confusion).
At the outset, Defendants plea, "Don't be cruel, we have a registered service mark." The length of the time the mark "The Velvet Elvis" has been used continuously in commerce will impact the deference accorded to the PTO's issuance of the registration. In its evaluation of each application submitted, the PTO employs the same "likelihood of confusion" test used by courts in infringement actions. See 15 U.S.C. § 1052; see also McCarthy, supra, § 23.24. Generally, the PTO will issue a registration upon concluding that the purchasing public would not assume mistakenly that the applicant's goods or services originate from or are sponsored by another registered trademark holder and after an appropriate period for opposition to the pending application. See McCarthy, supra, § 23.24[1][a].
Proof of registration of a service mark with the PTO is prima facie evidence of the validity of the mark and the registrant's exclusive right to use the mark in commerce for the services specified in the registration. 15 U.S.C. § 1115(a). Such proof, however, is not irrefutable and in the appropriate circumstances can be defeated by any legal or equitable defense which may have been asserted had the mark not been registered. See 15 U.S.C. § 1115(a). Ownership of a registered mark becomes conclusive evidence of the holder's exclusive right of use, subject to the few defenses under 15 U.S.C. § 1115(b), only after it has been used continuously in commerce for five consecutive years. As this is not the case here, the Court will determine whether Plaintiff's evidence is sufficient to sustain its burden of rebutting Defendants' presumptive right to use "The Velvet Elvis" service mark in its business. The Court will first analyze whether Defendants' use of the Elvis name in its service mark and Elvis memorabilia as bar decor is likely to create consumer confusion. Defendants' employment of the image, likeness, and other indicia of Presley in advertisements will be addressed separately.
A. Service Mark and Bar Decor
1. Type of Trademark (Strength of the Mark)
The "type" of trademark refers to the "strength" of the trademark and its ability to invoke an immediate association in the consumer's minds with a plaintiff's goods. See Hormel, 73 F.3d at 503. The stronger the mark the broader the protection it is afforded. Domino's, 615 F.2d at 259. The strength of the mark "refers to 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." McGregor-Doniger Inc. v. Drizzle, Inc., 599 F.2d 1126, 1131 (2d Cir.1979) (citations omitted).
Trademarks fall into three major categories, each accorded a different degree of protection under the law. Least protected are the generic trademarks. A "generic" term is a common descriptive name for a type of product or service, such as "milk" or "cigarettes." Oleg Cassini, Inc. v. Cassini Tailors, Inc., 764 F. Supp. 1104, 1108 (W.D.Tex.1990). Because of its widespread use, the term cannot adequately identify a specific product from a single source, thereby justifying the lack of protection given its user. Id. Moderate protection is afforded descriptive or suggestive marks which are marks that either evoke some quality of the product or describe it directly. Little Caesar Enterprises, Inc. v. Pizza Caesar, Inc., 834 F.2d 568, 571 (6th Cir.1987). Fanciful or arbitrary trademarks are awarded the greatest protection. Nutri/System, Inc. v. Con-Stan Industries, Inc., 809 F.2d 601, 605 (9th Cir.1987). In this category fall coined marks such as KODAK or XEROX and marks *792 which use ordinary words in a manner that neither describe nor suggest the product or service to which the mark has been assigned, such as IVORY soap or APPLE computers. Little Caesar, 834 F.2d at 571. These marks are considered to be "inherently distinctive" and capable of serving as unique product identifiers, easily distinguishing one merchant's products from those manufactured by others. Cassini, 764 F.Supp. at 1108.
While names generally fall in the descriptive category, they may be entitled to greater protection "with a showing that through usage the name has acquired distinctiveness ... in the minds of ordinary consumers." Conan, 752 F.2d at 155 (citations omitted); see also Cassini, 764 F.Supp. at 1109. Defendants concede that the worldwide fame and almost instantaneous recognition that the Elvis or Elvis Presley name has acquired enhance Plaintiff's claim that its trademark is a strong mark. "The more deeply a plaintiff's mark is embedded in the consumer's mind, the more likely it is that the defendant's mark will conjure up the image of the plaintiff's product instead of that of the junior user." Hormel, 73 F.3d at 503.
Even though Plaintiff's widely recognized trademarks are deserving of protection, this fact alone does not support a finding of confusion. Confusion is avoided when the defendant uses the plaintiff's mark as a part of a parody, jest, or societal commentary. Hormel, 73 F.3d at 503; Yankee Publishing Inc. v. News America Publishing Inc., 809 F. Supp. 267, 273 (S.D.N.Y.1992). Parody has been defined as a subtly humorous, imitative form of criticism, which provides "social benefit by shedding light on an earlier work, and in the process, creating a new one." Campbell v. Acuff-Rose Music, 510 U.S. 569, 579, 114 S. Ct. 1164, 1171, 127 L. Ed. 2d 500 (1994). By assailing prevalent vices and mores with ridicule, parody has become an especially effective method of exposing the weakness in an idea or value and plays an important role in social commentary. See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 28 (1st Cir.1987) cert. denied 483 U.S. 1013, 107 S. Ct. 3254, 97 L. Ed. 2d 753 (1987). Because "the keystone of parody is imitation," Nike, 6 F.3d at 1228, a successful parodist must conjure up enough of the original to "convey two simultaneous and contradictory messages: that it is the original, but also that it is not the original but instead a parody." Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, Inc., 886 F.2d 490, 494 (2d Cir.1989). "Parody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation." Campbell, 510 U.S. at 588, 114 S. Ct. at 1176.
Defendants' use of the service mark "The Velvet Elvis" when combined with the bar's gaudy decor form an integral part of Defendants' parody of the faddish, eclectic bars of the sixties. The phrase "velvet Elvis" has a meaning in American pop culture that is greater than the name, image, or likeness of Elvis Presley. The phrase symbolizes tacky, "cheesy," velvet art, including, but not limited to velvet Elvis paintings. Here, the image of Elvis, conjured up by way of velvet paintings, has transcended into an iconoclastic form of art that has a specific meaning in our culture, which surpasses the identity of the man represented in the painting. That image is confirmed upon entering the bar. Plaintiff's own witnesses testified that despite their thoughts about the bar's name, they immediately realized the tacky bar they had just encountered was in no way associated or affiliated with EPE. The humorous jab at the trends of the sixties is almost overpowering and readily apparent with one quick look around a lounge cluttered with tasteless art, long strand beads, and a lighted disco ball conspicuously hung from the ceiling. The customer's recognition and appreciation of Defendants' parody decreases the probability of confusion that would otherwise result from use of a trade name which partially incorporates a relatively strong mark. See Tetley, 556 F.Supp. at 794 ("[T]he very heavy handedness of defendant's parody would appear to assure that a clear distinction will be preserved in the consumer's mind between plaintiff's product and [defendant's product]."). Thus, the Court finds that while Plaintiff's mark is entitled to protection, it is doubtful that its inclusion within the name "The Velvet Elvis" will mislead consumers *793 into believing that the bar is affiliated or somehow associated with EPE. Nor will customers mistake "The Velvet Elvis" for an EPE owned or sponsored business because Elvis related items are used in the bar's decor. This factor therefore weighs against finding a likelihood of confusion exists both with respect to Defendants' use of "The Velvet Elvis" service mark and Elvis memorabilia as bar decor.
2. Degree of Similarity Between the Two Marks
The similarity of the disputed marks is determined by comparing their appearance, sound, and meaning. Jordache, 828 F.2d at 1484; McCarthy, supra, § 23.04. "The proper test is whether the average consumer, upon encountering the allegedly infringing mark in the isolated circumstances of the marketplace and having only a general recollection of the plaintiff's mark, would be likely to confuse or associate the defendant or his services with the plaintiff." American Automobile Association v. AAA Insurance Agency, Inc., 618 F. Supp. 787, 792 (W.D.Tex. 1985). In determining the degree of similarity, the respective marks should be compared as a whole and not by their component parts. General Mills, Inc. v. Kellogg Co., 824 F.2d 622, 627 (8th Cir.1987); see also McCarthy, supra, § 23.15[1][a]. "The commercial impression of a trademark is derived from it as a whole, not from its elements separated and considered in detail. For this reason it should be considered in its entirety." Estate of P.D. Beckwith, Inc. v. Commissioner of Patents, 252 U.S. 538, 545-46, 40 S. Ct. 414, 417, 64 L. Ed. 705 (1920).
As a general rule, "a subsequent user may not avoid likely confusion by appropriating another's entire mark and adding descriptive or non-distinctive matter to it." McCarthy, supra, § 23.15[8]. An exception to the general rule is found where the marks in their entireties convey two different meanings. Long John Distilleries, Ltd. v. Sazerac Co., 426 F.2d 1406, 1407, 57 CCPA 1286, (1970) (holding "Long John" and "Friar John" not substantially similar because the marks communicate very different ideas). The Court finds Defendants' service mark falls within this narrow category of exception because each party's mark creates a very different overall impression. Plaintiff's trademarks obviously refer to the legendary singer, Elvis Presley and products of his image and likeness marketed through EPE and its licensees. The term "The Velvet Elvis," on the other hand, is symbolic of a faddish art style that belongs to the culture that created it. It has no specific connection with the singer other than the coincidence of its use to portray him. Marked dissimilarity in the meaning of two marks can be determinative and weigh against a finding of confusion under this factor. See Jordache, 828 F.2d at 1484. "[P]sychological imagery evoked by the respective marks' may overpower the respective similarities or differences in appearance and sound." McCarthy, supra, § 23.08[1]; see also Jordache, 828 F.2d at 1484. The Court finds any similarity between the marks is outweighed by their strikingly different meanings. Accordingly, the Court finds the lack of similarity between the two marks weighs against a finding of confusion.
3. Similarity of Products or Services
"The greater the similarity between products and services, the greater the likelihood of confusion." Moore Business Forms, Inc. v. Ryu, 960 F.2d 486, 490 (5th Cir.1992). Direct competition between the parties is not necessary for infringement to occur, Cassini, 764 F.Supp. at 1111. Rather, "the gist of the action [for trademark infringement] lies in likelihood of confusion to the public." Professional Golfers, 514 F.2d at 669. Confusion may exist "when the sponsor or maker of one business product might naturally be assumed to be the maker or sponsor of another business or product," although the parties' products or services are non-competitive. Id. at 670. In addition, a trademark owner has a definite interest in "preserving avenues of expansion" and is entitled to protection in related fields where the possibility for future growth exists even though he had not entered that particular area at the time the infringement action is brought. See C.L.A.S.S. Promotions, Inc. v. D.S. Magazines, Inc., 753 F.2d 14, 18 (2d Cir.1985). *794 Thus, protection is extended in cases where it is clear that the plaintiff intends to expand his sales efforts to compete directly with the defendant or it is possible that the public will assume or perceive that an expansion of the plaintiff's operations has in fact occurred although there is no evidence of the plaintiff's expectation to do so. See Lambda Electronics Corp. v. Lambda Technology, Inc., 515 F. Supp. 915, 926 (S.D.N.Y.1981).
The evidence produced at trial showed that Defendants' bar caters to a young, "hip" crowd, providing patrons with a place to socialize. A customer can go to "The Velvet Elvis" to eat, drink, watch one of many television sets, or smoke a cigar in the bar's smoking room. At the present time, EPE does not provide services comparable to those of "The Velvet Elvis," although it currently operates two family oriented restaurants, one of which serves beer. EPE's operations are based on the sale of Elvis Presley merchandise. Its on-site eateries and ice cream parlors are a byproduct of the commercialization of Graceland rather than a venture into the restaurant business. Plaintiff has, however, indicated its intention to enter Defendants' field and plans to open an "Elvis Presley's" nightclub in Memphis sometime in 1997. Also, Debbie Johnson, General Manager of EPE, testified that an international chain of Elvis Presley restaurant/nightclubs with an Elvis motif is currently under contemplation.
While the Court finds the majority of Plaintiff's revenue is derived from a merchandising market unrelated to the service market Defendants occupy, there is some overlap between the parties' present services. Both parties do in fact operate restaurants, although the businesses are not directly competitive due to the very different clientele and purposes of the respective establishments. As the Plaintiff has presented testimony of its immediate plans to open a Memphis nightclub and future intent to open a chain of similar bars throughout the world, this factor might favor Plaintiff, were it not for the relative clarity of "The Velvet Elvis'" parodic purpose. In Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., the Tenth Circuit, faced with determining a parody's effect on directly competitive products, held against infringement finding that "[t]he benefit to the one making the parody, however, arises from the humorous association, not from public confusion as to the source of the mark." Jordache, 828 F.2d at 1486. The Court, in its reasoning, recognized that in order for a parody to convey its message effectively, there must be a clear and obvious difference from the original mark, leaving no room for confusion. To the extent the marks were associated, the Court found that it was for purposes of the parody only. The Court held that because consumers did not associate the two sources of the products, the plaintiff had suffered no actionable injury. Jordache, 828 F.2d at 1491. As in Jordache, this Court concludes that "The Velvet Elvis" is a successful parody. Defendants' bar is sufficiently dissimilar from any establishment EPE currently operates or has plans to operate in the future to prevent confusion as to the bar's source or origin.
4. Identity of Retail Outlets and Purchasers
Plaintiff claims that because its operations, specifically, Graceland and EPE-owned restaurants, and "The Velvet Elvis" are open to the general public, this factor should weigh in its favor. The Court nonetheless finds obvious distinctions between the customers of each business. Evidence at trial indicated that the majority of Plaintiff's customers are middle-aged white women while Defendants' customers generally are young professionals, ranging in age from early twenties to late thirties. In this circuit, "[d]issimilarities between ... the predominant consumers of plaintiff's and defendant's goods lessen the possibility of confusion, mistake, or deception." Domino's Pizza, 615 F.2d at 262. In Domino's Pizza, the Fifth Circuit found that the striking difference between Domino's Pizza customers, single, young males, and purchasers of Domino sugar products, middle-aged housewives, was not only substantial but significant enough to support an ultimate finding of no confusion. Id. With the same type of disparity between customers here, this Court finds a lack of confusion under this factor as well.
*795 5. Similarity of Advertising Media
This factor does not weigh in the balance at this time the parties are not operating in the same geographic market and Plaintiff admits that it rarely advertises because of the widespread and instant recognition of its marks and the Elvis image. Accordingly, this factor is irrelevant.
6. Defendants' Intent
A defendant's intent in adopting a particular trademark is critical "since if the mark was adopted with the intent of deriving benefit from the reputation of [the senior user] that fact alone `may be sufficient to justify the inference that there is confusing similarity.'" Domino's Pizza, 615 F.2d at 263 (quoting RESTATEMENT OF TORTS § 729 cmt. f (1938)). The "deliberate adoption of a similar mark may lead to an inference of intent to pass off goods as those of another which in turn supports a finding of likelihood of confusion." Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 925 (10th Cir.1986). Thus, the proper focus "is whether defendant had the intent to derive benefit from the reputation or goodwill of plaintiff." Sicilia Di R. Biebow & Co. v. Cox, 732 F.2d 417, 431 (5th Cir.1984).
The Court does not find that Defendants had an improper intent when adopting "The Velvet Elvis" as its establishment's name and service mark. Capece testified that the name refers to a particular type of painting and gaudy decor that was characteristic of bars during the sixties. In fact, he claims he was looking at a velvet Elvis painting when he determined that the name would be fitting for the kind of tacky, "cheesy," bar he had envisioned. His intent was to parody a time or concept from the sixties the Las Vegas lounge scene, the velvet painting craze and perhaps indirectly, the country's fascination with Elvis. By furnishing his bar with tasteless, tacky decor similar to that seen in a typical sixties nightclub, his intent was not only to mock what was once considered the height of sophistication and class but also to provide critical commentary on society as a whole. Reference to Elvis Presley is indirect, yet use of his name is an essential part of the parody because the term, "velvet Elvis," has become a synonym for garish, passe black velvet art. Any association between Elvis and velvet art is attributable to the public's linking Elvis Presley with this particular art form and not to any aspect of Elvis' persona cultivated by Plaintiff for the purpose of achieving national prominence.
Admittedly, a parody derives benefit from the reputation of the trademark holder it could not be a parody unless it imitated or evoked the original but parody by its nature depends on a distinguishable difference between the original and the imitation for its success. See Jordache, 828 F.2d at 1486. Therefore, because parody relies upon a difference from the original, an intent to parody cannot be equated with an intent to confuse. See Cardtoons v. Major League Baseball Players Ass'n, 95 F.3d 959, 967 (10th Cir. 1996) (holding defendant's success depends upon a humorous association of its parody baseball cards with the traditional licensed baseball cards and not on public confusion); Nike, 6 F.3d at 1231 ("An intent on the part of the [defendant] to palm off his products as those of another would raise an inference that the customer would likely be confused. An intent to parody raises the opposite inference"). In addressing this very issue, the Second Circuit in Hormel Foods Corp. v. Jim Henson Productions, Inc., considered the lack of subtlety in a parodist's intent as evidence that the defendant did not intend to deceive or mislead customers. Hormel, 73 F.3d at 505. The Court noted that a parodist has absolutely nothing to gain from causing confusion among its customers as his parody serves an entirely unique and different function from the original he imitates. Id. Likewise, this Court finds that, due to the clarity of Defendants' parody, use of the service mark, "The Velvet Elvis," was not intended to cause confusion among consumers as to the source or sponsorship of Defendants' bar.
7. Actual Confusion
Regarding this last factor, the Fifth Circuit stated that "[t]here can be no more positive or substantial proof of the likelihood of confusion than proof of actual confusion." World Carpets, Inc. v. Dick Littrell's New World Carpets, 438 F.2d 482, 489 (5th Cir. *796 1971); see also Roto-Rooter Corp. v. O'Neal, 513 F.2d 44, 45 (5th Cir.1975) (holding that very little proof of actual confusion is necessary to sustain a finding of a likelihood of confusion). It is well settled, however, that the plaintiff is not required to prove any instances of actual confusion in order to be entitled to a finding of a likelihood of confusion. Domino's Pizza, 615 F.2d at 263; see also Standard Oil Co. v. Standard Oil Co., 56 F.2d 973, 976 (10th Cir.1932) ("One does not have to await the consummation of threatened injury to obtain preventive relief."). However, an absence of actual confusion after a long period of concurrent use of the marks raises a presumption against a likelihood of confusion in the future. Domino's Pizza, 615 F.2d at 263; see Oreck Corp. v. U.S. Floor Systems, Inc., 803 F.2d 166, 173 (5th Cir.1986), cert. denied, 481 U.S. 1069, 107 S. Ct. 2462, 95 L. Ed. 2d 871 (1987) (holding that concurrent use for seventeen months with no actual confusion is "highly significant" in overall assessment when evidence as to other factors is lacking); Greentree Laboratories, Inc. v. G.G. Bean, Inc., 718 F. Supp. 998, 1002 (D.Me.1989) (holding that concurrent use for five years without confusion creates a presumption that confusion is unlikely); see also McCarthy, supra, § 23.02[3].
In an attempt to prove actual confusion, Plaintiff offered the testimony of four witnesses. Three of the four witnesses were members of the Elvis Presley fan club in Austin, Texas. These fan club members were all women ranging in age from mid-forties to early seventies. They had been shown samples of ads for "The Velvet Elvis" one month before trial and had the opportunity to visit the bar the day before testifying. The first woman, an Elvis fan since age seven and a five time visitor to Graceland, testified that she was offended by the nude paintings of women and the audacity of the bar's owner to hang these paintings in the same room with pictures of Elvis. The second woman, who had an extensive collection of Elvis memorabilia and had been to Graceland twenty-five times, testified that she was also not pleased to see Elvis's memorabilia in a bar, much less a bar that openly displayed portraits of nude women. The third woman, who was the President of the Austin Elvis Presley Fan Club and claimed to have been to Graceland between forty and fifty times, was likewise offended by the nudity in the decor and was disappointed to have Elvis's name associated with an establishment of this type. The fourth witness was a man who had been to both "The Velvet Elvis" bars. He testified that when first visiting the original "The Velvet Elvis," he initially thought he might be able to buy some Elvis merchandise. He quickly realized, though, upon closer inspection of the bar's decor, that the bar had nothing to do with Elvis Presley. Consistently, each witness acknowledged that once inside "The Velvet Elvis" and given an opportunity to look around, each had no doubt that the bar was not associated or in any way affiliated with EPE.
In addition, Plaintiff was not able to produce evidence of customer complaints or other instances of confusion although "The Velvet Elvis" had been in business at the Richmond Avenue location for more than two years. In fact, Carol Butler, Director of Worldwide Licensing for EPE since July of 1994, testified that she was not aware of any complaints or inquiries from customers, licensees, or employees of EPE regarding the sponsorship of "The Velvet Elvis" or EPE's connection to the Houston establishment. Capece, who oversaw the bar's day to day operations, also testified that he was never contacted or asked whether "The Velvet Elvis" was affiliated, endorsed or licensed by EPE. Based on the evidence presented, the Court concludes that there was an insufficient showing of actual confusion to allow this factor to weigh in Plaintiff's favor. An absence of actual confusion after a period of concurrent use by Plaintiff and Defendants of their respective marks supports the Defendants' position and raises a presumption under Domino's Pizza against a likelihood of confusion in the future. Domino's Pizza, 615 F.2d at 263.
After reviewing the evidence presented, the Court concludes that Defendants' service mark, "The Velvet Elvis," as currently used, and Defendants' use of Elvis memorabilia as bar decor does not create a likelihood of customer confusion under either the Lanham Act or the common law. Accordingly, the *797 Court finds this aspect of Plaintiff's infringement claim to be without merit. In light of the Court's disposition of this claim, Defendants' laches, acquiescence, and First Amendment defenses need not be addressed.
B. The Advertisements
The Court reaches a different conclusion with respect to the use of Elvis imagery and indicia of his persona in Defendants' advertisements. The ads clearly lack a recognizable connection with Defendants' parodic purpose. Pictures and images of Elvis Presley would, to the ordinary customer without knowledge of the underlying parody, leave the distinct impression that the bar's purpose was to pay tribute to Elvis Presley or to promote the sale of EPE related products and services. Consequently, use of this type of advertisement can only indicate a marketing scheme based on the tremendous drawing power of the Presley name and its ability to attract consumer interest and attention. Further, without the backdrop of parodic meaning, these ads and their continued circulation will cause confusion, leading customers to wonder if they might find memorabilia of their beloved singer somewhere behind the doors of "The Velvet Elvis." The Court also finds ads which overemphasize the "Elvis" portion of "The Velvet Elvis" service mark to have a comparable effect. The meaning conveyed by the composite mark, "The Velvet Elvis," is lost when the word "Elvis" is overemphasized and dominates a much smaller "Velvet." This transmuted display of Defendants' service mark focuses attention on "Elvis" instead of the meaning of the combined words "The Velvet Elvis" and what they represent together, creating a definite risk that consumers will identify the bar with Presley or EPE.
Plaintiff also presented evidence that this style of advertising did in fact confuse consumers as to the source of the bar's sponsorship. About one month before trial, Plaintiff's counsel showed each witness a sample of Defendants' previous advertisements. They all testified that the ads' use of pictures and images of Elvis led them to believe that "The Velvet Elvis" was connected or otherwise affiliated with Elvis Presley and EPE. Because "there can be no more positive or substantial proof of the likelihood of confusion than proof of actual confusion," the Court concludes that Defendants' ads, published between 1992 and 1995, were confusing and misleading. See World Carpets, 438 F.2d at 489. Accordingly, the Court finds Defendants' former advertisements which depicted the image and likeness of Elvis, made explicit references to Elvis, or overemphasized the "Elvis" segment of "The Velvet Elvis" service mark to be actionable infringement and conduct amounting to unfair competition, violative of both the common law and Lanham Act.
III. DILUTION
Plaintiff also requests relief under the Federal Trademark Dilution Act of 1995. 15 U.S.C.A. § 1125(c) (West Supp.1996). Dilution is defined as:
the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake, or deception.
15 U.S.C. § 1127 (West Supp.1996).
The dilution theory grants "protection to strong, well-recognized marks even in the absence of a likelihood of confusion" and depends neither upon a showing of a competitive relationship nor a certain degree of correlation or association between the parties goods or services. McCarthy, supra, §§ 24.13[1][b], 24.13[1][c]. The goal of dilution theory is to eliminate any "risk of an erosion of the public's identification of [a] very strong mark with the plaintiff alone" and to prevent another user from "diminishing [a mark's] distinctiveness, uniqueness, effectiveness and prestigious connotations." Tiffany & Co. v. Boston Club, Inc., 231 F. Supp. 836, 844 (D.Mass.1964).
To prevail on a claim of dilution, the plaintiff must establish the following two elements: (1) ownership of a distinctive mark, and (2) the likelihood of dilution. Hormel, 73 F.3d at 506. Undeniably, Plaintiff owns extremely strong marks. Thus, a finding of dilution in the present case depends on *798 whether there is the likelihood of dilution. The likelihood of dilution can be shown in two ways either through blurring or tarnishment. Id. Plaintiff claims both blurring and tarnishment have occurred in this case. The Court disagrees.
A. Blurring
Blurring involves "the gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name by its use upon non competing goods." Frank I. Schechter, The Rational Basis of Trademark Protection, 40 HARV.L.REV. 813, 825 (1927); see also Deere & Co. v. MTD Products, Inc., 41 F.3d 39, 43 (2d Cir.1994) ("`[B]lurring has typically involved the `whittling away of any established trademark's selling power through its unauthorized use by others upon dissimilar products.'" (quoting Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1031 (2d Cir.1989))). Accordingly, dilution is only likely where the junior mark is substantially similar to the senior user's mark. Mead Data Central, 875 F.2d at 1028-29; McDonald's Corp. v. McBagel's, Inc., 649 F. Supp. 1268, 1281 (S.D.N.Y.1986). "The paradigmatic dilution case involves the situation where the same or very similar marks are being used on vastly different products," thus diminishing the mental association once made between a specific trademark and a certain line of goods. Jordache Enterprises v. Hogg Wyld, Ltd., 625 F. Supp. 48, 56 (D.N.M.1985) (emphasis added). In such cases, "the ability of the senior user's mark to serve as a unique identifier of the plaintiff's goods or services is weakened because the relevant public now also associates that designation with a new and different source." McCarthy, supra, § 24.13[1][b].
Under some circumstances, "lack of similarity alone is sufficient to defeat a dilution claim." Mead Data, 875 F.2d at 1035-36 (Sweet, J., concurring); see also Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 120 (2d Cir.1984) (holding names and characters King Kong and Donkey Kong are so vastly different there could be no reasonable question raised as to the validity of plaintiff's blurring claim); Warner Bros., Inc. v. American Broadcasting Cos., 530 F. Supp. 1187, 1198 (S.D.N.Y.1982) (holding plaintiff's Superman character was so different from defendant's The Greatest American Hero that there was no danger of dilution), aff'd, 720 F.2d 231 (2d Cir.1983). As previously noted, the Court finds a marked dissimilarity between the parties' marks, particularly with respect to the meaning and the overall impression each mark conveys. The phrase "velvet Elvis" references a particular type of art associated with the sixties era. "Elvis" or "Elvis Presley," on the other hand, suggests only the singer. While the Court finds this distinction to be determinative, the Court also notes that there is very little likelihood that Defendants' parody will weaken the association among the "Elvis" or "Elvis Presley" trademarks and products marketed by EPE.
In a similar case, the Court in Hormel, determined whether use of a wild boar muppet named Spa'am as a character in Jim Henson's hit movie Muppet Treasure Island blurred the SPAM trademark Hormel had been using for its canned luncheon meat. The Court concluded that Henson's muppet character was created "to poke a little fun at Hormel's famous luncheon meat by associating its processed gelatinous block with a humorously wild boar." See Hormel, 73 F.3d at 501. In finding no blurring had occurred, the Court held that parodies did little to diminish the mental connection already formed between a plaintiff's mark and its product. Id. at 506. In fact, the Court found their effect was quite the opposite, public identification was increased rather than diluted. Id.; see also Jordache, 828 F.2d at 1490.
Again, in Tetley, Inc. v. Topps Chewing Gum, Inc., the Court addressed parody's effect on a mark's capacity as a product identifier. In that case, Tetley, maker of Tetley Tea Bags, sought to enjoin Wacky Packs, a brand of gummed stickers, from distributing a sticker satirically depicting the tea manufacturer's retail packaging entitled "Petley Flea Bags." In rejecting the plaintiff's dilution claim, the Court held that "the broad humor defendant employs serves to prevent the type of blurring which might result from *799 a more subtle or insidious effort at humor at plaintiff's expense." Tetley, 556 F.Supp. at 794. Defendants' overt style of commentary is similar to that employed in Hormel and Tetley and consequently, this Court finds that Defendants' use of "The Velvet Elvis" as its logo does not blur Plaintiff's marks.
B. Tarnishment
Tarnishment generally arises when "a plaintiff's trademark is linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context likely to evoke unflattering thoughts about the owner's product." Deere, 41 F.3d at 43 (footnote omitted). The threat of tarnishment occurs when the reputation and goodwill of the plaintiff's trademark is connected with products that "conjure associations that clash with the associations generated by the owner's lawful use of the mark." L.L. Bean, 811 F.2d at 31. Generally, tarnishment has been found in cases where a distinctive mark is depicted in a context of sexual activity, obscenity, or illegal activity, see Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir.1979) (Dallas Cowboy Cheerleader uniforms used in sexually depraved movie); Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183, 1189 (E.D.N.Y.1972) (Coca-Cola logo used in poster stated "Enjoy Cocaine"); Pillsbury Co. v. Milky Way Productions, Inc., 215 U.S.P.Q. 124, 135, 1981 WL 1402 (N.D.Ga.1981) (Pillsbury dough boy depicted engaging in sexual intercourse). Courts have also found tarnishment to occur even though the plaintiff's mark was not portrayed in an unwholesome manner but have done so only in cases involving identical or almost identical trade names, see Steinway & Sons v. Robert Demars & Friends, 210 U.S.P.Q. 954, 961, 1981 WL 40530 (C.D.Cal.1981) (Steinway pianos tarnished by Stein-Way clip-on beverage can handles); Jordache, 828 F.2d at 1491 (discussing cases where tarnishment was found although there was no unwholesome context and finding that they all involved the use of identical or almost identical trade names on different products), or cases where alterations of a mark are "made by a competitor with both an incentive to diminish the favorable attributes of the mark and ample opportunity to promote its products in ways that make no significant alteration." Deere, 41 F.3d at 45.
This Court has already determined that the marks in dispute are not sufficiently similar to constitute tarnishment on this basis. Further, because the parties are not currently in direct competition nor were they when "The Velvet Elvis" opened, the Court also finds that Defendants' parody does not ridicule Plaintiff's mark for the purpose of promoting its own competitive product. Regardless of the context, however, a finding of dilution by tarnishment must be supported by evidence that the plaintiff's mark will suffer negative associations from the defendant's use. Hormel, 73 F.3d at 507. There has been no evidence in this case to indicate that Defendants' service mark has had an actionable impact on the image cultivated by either the "Elvis" or "Elvis Presley" trademarks.
Plaintiff bases its tarnishment claim on the unsupported assumption that Defendants' use of the Elvis name in association with a tacky bar that indiscriminately displays explicit and almost pornographic paintings of nude women has tainted the wholesome image of Elvis and EPE sponsored products and services. The Court finds, however, without any evidence to the contrary, that nude portraits hung in a bar for the purpose of mocking the tasteless decor of the sixties does not inspire negative or unsavory images of Elvis or Elvis related products or services in the minds of EPE customers. See Tetley, 556 F.Supp. at 794 (finding plaintiff produced no evidence from either lay consumers or experts to support a claim of tarnishment). Furthermore, the nude pictures and the bar's intentional tackiness are an obvious part of the parody and are associated, to the extent any association is made, for purposes of the parody only, rather than for creating a permanent derogatory connection in the public's mind between the two businesses. See Jordache, 828 F.2d at 1491 ("Association of marks for parody purposes without corresponding association of manufacturers does not tarnish or appropriate the good will of the manufacturer of the high quality similar product"). Although "The Velvet Elvis" *800 might be considered by some customers to be in poor taste, the Court is convinced that it is not likely to prompt an unsavory or unwholesome association in consumers minds with the "Elvis" or "Elvis Presley" trademarks. Absent such a showing, a tarnishment claim cannot be sustained. See Hormel, 73 F.3d at 507.
IV. RIGHT OF PUBLICITY
Plaintiff claims that Defendants' use of the name, image, likeness, and other indicia of Elvis for the purposes of trade constitutes an appropriation of Elvis Presley's right of publicity. As owner of the exclusive rights in the identity of Elvis, Plaintiff seeks redress for a violation of its common law right as well as its corresponding statutory rights under either Tennessee or Texas law. At the outset, the Court must determine whether to apply Tennessee or Texas law to Plaintiff's claims. Although subject matter jurisdiction in this case is based on an alleged violation of a federal statute, the Lanham Act, Texas choice of law principles will dictate which state's substantive law applies to the pendent state law claims. Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 496-97, 61 S. Ct. 1020, 1021-22, 85 L. Ed. 1477 (1941). Texas has adopted the "most significant relationship" test, as enunciated in the Restatement (Second) of Conflicts, to resolve all conflict of law cases sounding in tort. Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979). The test provides that "`law of the state with the most significant relationship to the particular substantive issue will be applied to resolve that issue.'" Caton v. Leach Corp., 896 F.2d 939, 943 (5th Cir.1990) (quoting Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984)). The application of the "`most significant relationship' test does not `turn on the number of contacts,' but more importantly on the qualitative nature of those contacts as affected by the policy factors enumerated in Section 6."[2]De Aguilar v. Boeing Co., 47 F.3d 1404, 1413 (5th Cir.1995) (quoting Gutierrez, 583 S.W.2d at 318), cert. denied, ___ U.S. ___, 116 S. Ct. 180, 133 L. Ed. 2d 119 (1995). Before this determination is made, the Court must first identify all relevant contacts as a Texas court would. De Aguilar, 47 F.3d at 1414. In doing so, the Court is guided by the following factors which are considered when applying the principles of Section 6: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered. Gutierrez, 583 S.W.2d at 318-19 (citing RESTATEMENT (SECOND) OF LAWS, § 145 (1971)).
The Court finds that Plaintiff's right of publicity was violated, if at all, in Texas where aspects of Elvis's persona have been used without consent, see Baltimore Orioles v. Major League Baseball Players Ass'n, 805 F.2d 663, 681 (7th Cir.1986) (holding players right of publicity might be violated wherever their performances were broadcast without authorization), cert. denied, 480 U.S. 941, 107 S. Ct. 1593, 94 L. Ed. 2d 782 (1987), that the conduct causing the injury occurred in Texas, and that at least one of the parties is domiciled in Texas. Since the "locus of the conduct" is in Texas, the Court believes that Texas has a "greater interest in seeing that its standard of care is applied" because of the affect it will have on the way parties tailor their conduct within the state. De Aguilar, 47 F.3d at 1414. "[S]ubject only to rare *801 exceptions, the local law of the state where the conduct and injury occurred will be applied to determine whether the actor satisfied minimum standards of acceptable conduct and whether the interest affected by the actor's conduct was entitled to legal protection." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145, cmt. d, at 417-18. The Court therefore concludes that Texas law will apply to Plaintiff's right of publicity claims.
The right of publicity has been defined as the "inherent right of every human being to control the commercial use of his or her identity" and prevent the exploitation of any aspect of their persona without permission. McCarthy, supra, § 28.01[2][a]; see also J. McCarthy, Melville B. Nimmer and the Right of Publicity: A Tribute, 34 UCLA L.REV. 1703, 1704 (1987). It is considered a property right and is descendible as an asset of the estate upon an individual's death. See TEX.PROP.CODE.ANN. § 26.002 (Vernon 1984 & Supp.1996). Publicity rights do not have a "likelihood of confusion" requirement and are more expansive than any statutory or common law right to protection against trademark infringement. Rogers v. Grimaldi, 875 F.2d 994, 1003 (2d Cir.1989). To violate a plaintiff's right of publicity, however, the defendant must employ an aspect of persona in a manner that symbolizes or identifies the plaintiff, such as the use of a name, nickname, voice, picture, achievements, performing style, distinctive characteristics or other indicia closely associated with a person. McCarthy, supra, § 28.01[4]. Appropriation becomes actionable when "it is used to advertise the defendant's business or product, or for some similar commercial purpose." RESTATEMENT (SECOND) OF TORTS § 652C, cmt. b; Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir.1994).
Under Texas law a person is specifically prohibited from using:
without the written consent of a person who may exercise the property right, a deceased individual's name, voice, signature, photograph, or likeness in any manner, including: (1) in connection with products, merchandise or goods; or (2) for purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods or services.
TEX.PROP.CODE § 26.011 (Vernon 1984 & Supp.1996). A prima facie case requires proof that (1) the defendant has appropriated another's identity and (2) is using it for trade or commercial benefit. Matthews, 15 F.3d at 437.
Plaintiff claims that Defendants have violated its publicity rights by using the Elvis name as part of its service mark, by promoting its bar services through ads containing pictures or using the image or likeness of Elvis, by making reference to Elvis on its dinner menu, and by using Elvis memorabilia as bar decor. In essence, the Plaintiff's complaint is that "The Velvet Elvis" is simply a disguised attempt at capitalizing on the identity of Elvis Presley.
Unquestionably, use of pictures or images of Elvis in "The Velvet Elvis" advertisements is an unlawful appropriation of the identity of Elvis Presley. Elvis is clearly identifiable and the only distinguishable purpose of the ads is to exploit the persona of Elvis for commercial advantage. Defendants admitted as much when they expressed a willingness at trial to be permanently enjoined from using similar advertisements in the future. The mention of Graceland or use of phrases in ads that are linked inextricably to the identity of Elvis as a celebrity, such as "Elvis has left the building" is also violative of Plaintiff's publicity rights. A celebrity's identity can be appropriated unlawfully even without use of his name or likeness. See Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir.1983) (holding Defendant "Here's Johnny Portable Toilets, The World's Foremost Commodian" appropriated the identity of Johnny Carson by using the phrase "Here's Johnny" as a trade name); Ali v. Playgirl, Inc., 447 F. Supp. 723, 729 (S.D.N.Y.1978) (holding picture published in defendant's magazine of a nude man closely resembling Muhammad Ali accompanied by verse "The Greatest" violated Ali's right of publicity). A violation can occur simply in the use of a phrase that clearly identifies the celebrity such as "Here's Johnny." Carson, 698 F.2d at 836.
*802 Use of Elvis memorabilia as decor, on the other hand, does not amount to any violation as it is not intended for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods or services. In other words, the function of the memorabilia is not to promote a product or capitalize on the personality of Elvis himself but rather to recreate an era of which Elvis was a public part. In fact, with the exception of the now infamous velvet Elvis portrait, Defendants have removed most of the Elvis related objects with no apparent effect on the bar's message or success. Likewise, the Court finds the menu's use of the expression "King of Dive Bars" and its incorporation of peanut butter and banana sandwiches as a menu item are not actionable. While it may be true that Elvis enjoyed peanut butter and banana sandwiches, this fact alone will not support a claim for violation of the Plaintiff's right of publicity. To trigger infringement the plaintiff must be clearly identifiable from use of the item or phrase in question. McFarland v. Miller, 14 F.3d 912, 920 (3d Cir.1994) (recognizing that without identification, the right of publicity is worthless); see also McCarthy, supra, § 28.01[4]. Such is not the case here.
Additionally, the Court finds Defendants' use of the service mark, "The Velvet Elvis," does not amount to an unauthorized commercial exploitation of the identity of Elvis Presley. The service mark represents an art form reflective of an era that Elvis helped to shape. "The velvet Elvis" became a coined phrase for the art of velvet paintings and was adopted by Defendants for this reason not because of its identification with Elvis Presley. Elvis's association with velvet paintings was not a product of his own doing nor can it be considered a part the character or personality of Elvis that Plaintiff has the right to control. Unlike "Here's Johnny," this phrase is not the thumbprint, work product, or tangible expression of Elvis Presley's celebrity identity. The mere association of a phrase or expression with a celebrity without the intent or effect of exploiting his identity or persona is insufficient cause for a violation of publicity rights.
Even assuming a violation of Plaintiff's right of publicity, Defendants' use of "The Velvet Elvis" as its service mark should be protected expression under the First Amendment. Consistently, courts have held that book, movie, or song titles using celebrities names are not violative of publicity rights and are protected speech under the First Amendment where the use of the celebrity's name "is clearly related to the content of the [underlying commodity] and is not a disguised advertisement for the sale of goods or services or a collateral commercial product." Rogers, 875 F.2d at 1004; Hicks v. Casablanca Records, 464 F. Supp. 426, 433 (S.D.N.Y.1978); Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 160 Cal. Rptr. 352, 353, 603 P.2d 454, 455 (1979). The Second Circuit in Rogers v. Grimaldi, despite acknowledging a title's commercial component, nonetheless held the expressive element of titles "requires more protection than the labeling of ordinary commercial products." Rogers, 875 F.2d at 998 (footnote omitted). With concern for the preservation of free expression and the special protection this category of speech should be given, the Court concluded that publicity rights should not be permitted to serve as a categorical bar to the use of celebrities' names in titles. Rogers, 875 F.2d at 1004. This Court believes the reasoning of Rogers to be applicable in this case.
Finally, Plaintiff also accuses Defendants of violating its right of publicity by selling a frozen drink called "Love Me Blenders" and a food item named "Your Football Hound Dog." The Court finds that the connection with Elvis's hit songs "Love Me Tender" and "Hound Dog" is an obvious attempt at humor and plays a supporting part in the overall parody. Its use, therefore, is not actionable. Deference under the First Amendment has been afforded to the commercial use of celebrity identities when included as a part of a parody. In Cardtoons v. Major League Baseball Players Ass'n, the Tenth Circuit rejected a claim brought by professional baseball players that their publicity rights were violated by the sale of parody trading cards featuring their caricatures and humorous commentary about their careers. 95 F.3d 959, 973 (10th Cir.1996). *803 The Court viewed parody as a "valuable communicative resource" and "a vital commodity in the marketplace of ideas" through which "a parodist can, with deft and wit, readily expose the foolish and absurd in society." Cardtoons, 95 F.3d at 972. After carefully balancing the possible speech restriction against the government's interest in protecting an individual's right of publicity, the Court found that a celebrity's interest in preserving his property rights must yield to society's more compelling interest in free expression, ultimately holding that a restriction on the use of celebrity identities in parodies was an unconstitutional restraint on the communication of ideas. Cardtoons, 95 F.3d at 972. Although the baseball players in Cardtoons were the direct focus of the parody, this Court nonetheless finds that the balancing test employed by the Cardtoons court would also apply and weigh in favor of expression in cases such as the instant case where the name, image, or identity of the celebrity is an indirect, yet vital part of the overall success of the parody. For the foregoing reasons, the Court therefore determines that Plaintiff's claims under TEX.PROP. CODE § 26.011 must fail.
V. REMEDIES
The Court has found Defendants liable for the following with respect to Defendants' mode of advertisement: trademark infringement and unfair competition under the Lanham Act and the common law and a violation of Plaintiff's publicity rights under TEX.PROP. CODE § 26.011. The Court will now address the appropriate remedy. Plaintiff seeks injunctive relief, an accounting of profits, and attorney's fees and costs.
Under both the Lanham Act and common law, the Court has the discretion to issue an injunction to prevent the continuation of trademark infringement or acts of unfair competition. 15 U.S.C. § 1116; see also McCarthy, supra, § 30.01. While the Court is not sure if Elvis has left the building, it is clear that Elvis left Defendants' ads sometime in 1995. Ordinarily, since Defendants have discontinued their use of this type of advertisement and Capece renounced any intent to resume similar advertising in the future, injunctive relief might not be available as a remedy. However, the Court still believes there is a definite possibility that ads including the image or likeness of Elvis Presley, references to Elvis, or his name disproportionately displayed may be used in connection with "The Velvet Elvis" again. Capece acknowledged that employees of "The Velvet Elvis" published ads, without his approval or awareness, containing pictures and direct references to Elvis Presley even after he specifically requested they stop. The Court thereby finds that with a management style that leaves day to day operations in the hands of its employees, injunctive relief is the proper remedy and necessary to prevent the continuation of advertisements which improperly display the image of Elvis, which make direct references to his identity as a celebrity or which emphasize the word "Elvis" in the mark "The Velvet Elvis."
The Court declines to order an accounting of profits or an award of attorney fees. Plaintiff's request for an accounting of profits is denied based on the complete absence of evidence showing lost or diverted sales. See Pebble Beach Company v. Tour 18 I, Ltd., 942 F. Supp. 1513 (S.D.Tex.1996). The Court also denies Plaintiff's request for attorney fees because the evidence does not support a finding that the violative acts in this case were malicious, fraudulent, deliberate or willful as necessary for an award of attorney fees under the Lanham Act. Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1390 (5th Cir.1996).
Therefore, the Court ORDERS that Plaintiff is entitled to permanent injunctive relief as follows: Defendants and all persons in active concert or participation with Defendants are permanently enjoined from using in connection with the promotion or advertising of "The Velvet Elvis" the image and likeness of Elvis Presley, phrases that are inextricably linked to the identity of Elvis, or from displaying the "Elvis" portion of their service mark in print larger than that used for its counterpart "Velvet." The Defendants shall comply with this injunction immediately upon entry of final judgment. All additional relief requested by Plaintiff not specifically granted is herein denied.
*804 This Order is a FINAL JUDGMENT.
The Clerk shall enter this Order and mail a copy to all parties. If said parties can no longer be reached at their disclosed addresses, the Court further ORDERS all correspondence be "Returned to Sender."
Thank you. Thank you very much.
NOTES
[1] Although Plaintiff's petition also included a claim for damages, no evidence of damages was presented at trial. Plaintiff argued only for injunctive relief and cancellation of Capece's service mark.
[2] Section six of the Restatement provides:
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no directive, the factors relevant to the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems;
(b) the relevant policies of the forum;
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue;
(d) the protection of justified expectations;
(e) the basic policies underlying the particular field of law;
(f) certainty, predictability, and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
RESTATEMENT (SECOND) OF CONFLICT OF LAWS, § 6 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1969681/ | 446 Mich. 298 (1994)
521 N.W.2d 797
PEOPLE
v.
PICKENS
PEOPLE
v.
WALLACE
Docket Nos. 91434, 95720, (Calendar Nos. 9-10).
Supreme Court of Michigan.
Argued December 2, 1993.
Decided August 25, 1994.
*302 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training, and Appeals, and Joseph A. Puleo and Thomas M. Chambers, Assistant Prosecuting Attorneys, for the people.
Joel D. Patterson for defendant Pickens.
Martin J. Beres for defendant Wallace.
Amici Curiae:
Joan Ellerbusch Morgan for the Criminal Defense Attorneys of Michigan.
Margaret Chiara, Donald E. Martin, and Guy L. Sweet for the Prosecuting Attorney's Association of Michigan.
RILEY, J.
At issue in these consolidated cases is whether the Michigan constitutional guarantee of the effective assistance of counsel provides a criminal defendant with greater protections than its federal counterpart. We hold that the intention underlying the Michigan Constitution does not afford greater protection than federal precedent with regard to a defendant's right to counsel when it involves a claim of ineffective assistance of counsel. Thus, to find that a defendant's right to *303 effective assistance of counsel was so undermined that it justifies reversal of an otherwise valid conviction, a defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced the defendant as to deprive him of a fair trial. Accordingly, we affirm the judgment of the Court of Appeals in People v Wallace and reverse the judgment of the Court of Appeals in People v Pickens because neither defendant is capable of showing that he was denied effective assistance of counsel.
Also at issue in Wallace is whether the denial of independent defense neurological tests by the trial court mandates reversal of defendant's conviction. While the trial court violated MCL 768.20a(3); MSA 28.1043(1)(3) by denying defendant's request for the tests, we affirm the conviction because the error was harmless under the circumstances.
Furthermore, we find that the admission of statements made by Wallace and others regarding the shooting and his past behavior as testified to by the prosecutor's rebuttal witness was not error because the statements were relevant to rebut Wallace's claim of insanity and were not unfairly prejudicial.
Hence, we affirm the judgment of the Court of Appeals in Wallace and reverse the judgment of the Court of Appeals in Pickens.
I
A
Defendant Dwayne Pickens was charged with selling less than fifty grams of cocaine to an undercover police officer in the City of Detroit. During his opening argument at trial, defense *304 counsel indicated that Eric Wright would testify that Pickens had been with him the day in question and had not delivered cocaine. The trial court, however, barred the introduction of the alibi witness because defense counsel had failed to file a notice of alibi as required by MCL 768.20(1); MSA 28.1043(1).[1]
Pickens was convicted as charged by the jury and sentenced to four to twenty years imprisonment. On appeal, he argued, inter alia, that he had been denied effective assistance of counsel because his counsel failed to file a notice of alibi and had not moved for an adjournment to correct the error. The Court of Appeals remanded for an evidentiary hearing pursuant to People v Ginther, 390 Mich. 436, 442-444; 212 NW2d 922 (1973).
At the Ginther hearing, Pickens' trial counsel testified that her records did not show that she had failed to file a notice of an alibi defense. She indicated that she intended to call Wright to testify at trial as an alibi witness and that she had discussed that possibility with him and Pickens before trial. She could not recall if Wright appeared on the first day of trial, but remembered that he had been subpoenaed by her investigator and did not appear on the second day. She speculated that she did not move for an adjournment because the trial court's ruling precluding Wright was so definite. Following this pattern, Pickens' appellate counsel also waived production of Wright at the Ginther hearing. The record does not provide any explanation for his failure to testify at trial or the Ginther hearing.
After remand, the Court of Appeals found that Pickens was prejudiced by his trial attorney's *305 failure to timely file a notice of an alibi defense or to move for an adjournment.[2]
This Court granted leave to appeal, 443 Mich. 884 (1993), and consolidated the case with People v Wallace, 443 Mich. 883 (1993).
B
On August 4, 1986, defendant Ralph Wallace shot and killed his estranged wife as she sat across from him at a bar. After a preliminary examination, he was bound over for trial, and he personally retained defense counsel.
Counsel gave notice of Wallace's intent to raise an insanity defense, and the court granted the defense motion for an independent psychiatric evaluation. The court, however, later denied Wallace's request for additional neurological tests, including a CAT scan, that had been recommended by Dr. Rajendra K. Bhama, the independent psychiatric evaluator. In denying Wallace's motion for independent testing, the court reasoned that the trial should not be delayed to permit independent testing when identical tests had already been performed.[3] The court suggested that Dr. Bhama obtain the previous test results.
At trial, the prosecution argued that Wallace premeditated the murder of his wife. Various prosecution witnesses testified that Wallace threatened to kill her at least twice before the fatal shooting.[4] Witnesses to the slaying testified that Wallace, *306 sitting across a table from his wife, shot her and, after pausing for almost a minute, fired again after she had fallen and appeared alive. He then stated that the victim was "only his wife" and placed the gun on the counter. After announcing to the crowd not to worry, he went to the restroom and his car, and returned to wait for the police. An officer testified that Wallace spoke coherently, appeared sober, and admitted shooting his wife.[5]
Defense counsel countered that Wallace was mentally ill at the time of the shooting and acted in the heat of passion. Wallace's employer testified that on the day of the murder, Wallace appeared at work explaining that his plans to go fishing had gone awry. After witnessing Wallace ranting and raving with a flushed face, he sent him home. His employer also admitted providing him tranquilizers and antidepressant drugs before the day of the shooting. Other defense witnesses testified that Wallace and his wife often argued, and that on the day of the slaying he was despondent about his children.
Wallace denied intending to murder his wife. He testified that he took a tranquilizer provided by his employer after arriving home from work. He then drank two beers at a tavern and two at home before his wife called. They met at a bar to continue a discussion about his wish to take their six-year-old daughter fishing. He did not recall taking the gun, but admitted that he probably did because it was night and he feared his wife's family, describing earlier altercations with her brother. He testified that at the bar his wife described sexual experiences with her new lover and demanded her wedding rings back. While he did not recall shooting his wife, he described seeing two *307 enlarged moving images of her on the wall that appeared to be floating away. He felt as if he were going to explode.
Defendant's main witness for purposes of the insanity defense was his independent psychiatric examiner, Dr. Bhama, who concluded that he suffered from neurocortical damage and cerebellum dysfunction.[6] He theorized that on the day of the shooting, Wallace suffered from mental illness and disorder of thought and judgment. He also stated that Wallace lacked the substantial capacity of appreciating the wrongfulness of his conduct. He concluded that Wallace was legally insane at the time of the shooting.
The prosecution presented two expert rebuttal witnesses: Dr. Dexter Fields, chief psychiatrist at the Recorder's Court Psychiatric Clinic, and Ronald Kolito, senior clinical psychologist at the clinic. Dr. Fields disagreed with the diagnosis of organic brain syndrome, opining that Wallace was in touch with reality and that anxiety could have caused him to believe that his wife was larger than usual.
Kolito testified that Wallace was not psychotic or mentally ill at the time of the shooting. He buttressed his conclusion by testifying about comments made by Wallace about the day of the shooting, as well as observations of Wallace's co-worker about his behavior.[7] Defense counsel objected to much of his testimony as misleading and *308 impermissible hearsay. After giving the jury curative instructions, the trial court admitted the testimony, reasoning that it provided the underlying facts of an expert's opinion.[8]
The jury found Wallace guilty of first-degree murder and of possession of a firearm during the commission of a felony. After denying a motion for new trial, the court sentenced him to the mandatory term of life plus two years for the felony-firearm conviction.
Wallace appealed, and the Court of Appeals granted a remand for a Ginther hearing on his claim of ineffective assistance of trial counsel. The Court denied the motion for a new trial and subsequent motions to remand. This Court granted leave to appeal to consider: (1) whether Wallace was denied the effective assistance of counsel, (2) whether the trial court erred when it denied his motion for neurological tests, and (3) whether the trial court erred in admitting the disputed rebuttal testimony.
II
At issue in these consolidated cases is the application of the Michigan Constitution's guarantee of the right to counsel to a claim of ineffective assistance of counsel. Our Court of Appeals has interpreted *309 our decision in People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976), as requiring the reversal of a criminal conviction when defense counsel failed to perform as well as a reasonably competent attorney, even if the defendant was not prejudiced by such representation. See, e.g., People v White, 142 Mich. App. 581, 588-589; 370 NW2d 405 (1985). In Strickland v Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984), however, the United States Supreme Court found that to prove a claim of ineffective assistance of counsel mandating reversal of a conviction the Sixth Amendment requires not only that counsel's performance fell below an objective standard of reasonableness, but also that the representation so prejudiced the defendant as to deprive him of a fair trial.
At issue in the instant case is whether the Michigan Constitution requires the reversal of a criminal conviction when defense counsel's ineffective assistance did not so prejudice a defendant as to deprive him of a fair trial.
A
1
Michigan law has long held that "[i]t is a maxim that the object of construction, as applied to a written Constitution, is to ultimately ascertain and give effect to the intent of the people in adopting it." Kearney v Bd of State Auditors, 189 Mich. 666, 671; 155 N.W. 510 (1915). This is so because when interpreting the law "it is the intent of the law-giver that is to be enforced." 1 Cooley, Constitutional Limitations (8th ed), p 125 (emphasis in original). Because "the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people ... in the sense *310 most obvious to the common understanding...." Id. at 143. Often, "to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered." Traverse City School Dist v Attorney General, 384 Mich. 390, 405; 185 NW2d 9 (1971), quoting Cooley, Constitutional Limitations (6th ed), p 81.
Because a "constitutional limitation must be construed to effectuate, not to abolish, the protections sought by it to be afforded," failure to adhere to the purpose and history undergirding the document "is to make the constitutional safeguard no more than a shabby hoax, a barrier of words, easily destroyed by other words." Lockwood v Comm'r of Revenue, 357 Mich. 517, 557, 556; 98 NW2d 753 (1959). In other words, without understanding both the origin and purpose of a constitutional provision, this Court cannot properly protect the mandate of the people because words stripped of their context may be manipulated and distorted into unintended meanings. See, e.g., Carmen v Secretary of State, 384 Mich. 443, 452; 185 NW2d 1 (1971).[9]
2
As a guarantee of liberty, the phrase "assistance of counsel," by necessity, will not be defined in great detail in the constitution. Nevertheless, it is one of many terms that has "acquired a well-understood meaning, which the people must be supposed to have had in view in adopting them. *311 We cannot understand these provisions unless we understand their history; and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense." 1 Cooley (8th ed), supra at 132. Hence, we must examine the historical and common-law origins of the provision to properly understand its content.
Michigan has long recognized that "[p]erhaps the privilege most important to the person accused of crime, connected with his trial, is that to be defended by counsel." 1 Cooley (8th ed), supra at 696. See also Const 1963, art 1, § 20 ("[i]n every criminal prosecution, the accused shall have ... assistance of counsel for his defense ...").[10]
Moreover, Michigan law has well established that "it is a duty which counsel so designated owes to his profession, to the court engaged in the trial, and to the cause of humanity and justice, not to withhold his assistance nor spare his best exertions, in the defense of one who has the double misfortune to be stricken by poverty and accused of crime." 1 Cooley (8th ed), supra at 700. More specifically, a court is obliged to intervene when defense counsel "accept[s] the confidence of the accused, and then betray[s] it by a feeble and heartless defense." Id. at 704. In other words, Michigan law has long required that defense counsel present a reasonable defense. Because this test is no more protective than the federal standard,[11] we need not determine the exact contours of the Michigan guarantee.
*312 3
The issue in the instant case, however, is: under what circumstances does the failure to perform that duty mandate reversal of a defendant's conviction? Under federal law, the purpose of the right to counsel "is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Strickland, supra at 691-692. To find prejudice, a court must conclude that there is "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.[12]
Our Court of Appeals, however, has interpreted this Court's decision in Garcia as requiring the reversal of a conviction even if defense counsel's ineffective assistance did not prejudice the defendant. While we recognize that the opinion is less than a model of clarity and might be so interpreted, such a procedure is not mandated by federal law. Garcia essentially relied on Sixth and Fourteenth Amendment jurisprudence, and did not formulate the standard from the intentions, history, or common law undergirding the Michigan *313 Constitution.[13]Garcia, therefore, does not stand for the proposition that the Michigan Constitution was intended to grant stronger protections than federal authority with regard to the standards applied to the issue of ineffective assistance of counsel.
Indeed, Michigan constitutional law has long held that "[e]rrors which cannot possibly create any prejudice to the rights of one charged with crime ought not to, and cannot, operate as a ground for a new trial." People v Wade, 101 Mich. 89, 91; 59 N.W. 438 (1894).[14] As Justice COOLEY *314 explained, "[i]t is possible to be so nice in such matters as to render a legal conviction of crime practically impossible; and while the court should see to it on the one hand that no wrong shall be done the defendant, so on the other they are not to set aside a conviction obtained on a fair trial ...." Strang v People, 24 Mich. 1, 10 (1871). In other words, "[w]e require a fair trial, not a perfect trial." People v Beach, 429 Mich. 450, 491; 418 NW2d 861 (1988).
Hence, under Michigan law, counsel's ineffective assistance must be found to have been prejudicial in order to reverse an otherwise valid conviction. Thus, we reject defendants' contention that the Michigan Constitution mandates reversal of their convictions because of the ineffective assistance of counsel without a showing of prejudice, and overrule those Court of Appeals cases which so hold.
4
The next crucial issue, however, is the standard by which a defendant may prove that he was prejudiced by ineffective assistance of counsel. The United States Supreme Court has held that a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra at 694. Nevertheless, at strong variance with Michigan and federal authority, Justice MALLETT would hold "that to show prejudice under the Michigan Constitution, the *315 defendant must prove that there is a reasonable probability that his attorney's incompetence deprived him of an otherwise available and likely meritorious defense." Post at 341. Noting that we have "decided issues relating to counsel without citing federal authority," and that the Court has at times interpreted the right to counsel to afford greater protections than the federal constitution, Justice MALLETT concludes that "there is historical authority to depart from Strickland and to establish our own standard regarding the applicable definition of prejudice." Post at 348.
The Michigan and federal constitutions, of course, may have different meaning. "As a matter of simple logic, because the texts were written at different times by different people, the protections afforded may be greater, lesser, or the same." Sitz v Dep't of State Police, 443 Mich. 744, 761; 506 NW2d 209 (1993).[15] The question of state constitutional adjudication, however, is not whether this Court may interpret our constitution differently than the federal constitution, the issue is whether we must. Unless the constitutional authority exists to interpret the constitution differently, we must not. On the other hand, if constitutional authority directs an interpretation different than federal precedent, we must do so.
In accordance with our time-honored rules of *316 constitutional construction, to justify an expansion of the Michigan Constitution beyond federal protections for identically worded phrases and provisions, such protections must be deeply rooted in the document. This Court may not engraft on to constitutional text "more `enlightened' rights than the framers intended." Id. at 759. In fact, this Court has been reluctant to find greater protections of individual rights in identically phrased state constitutional provisions without a compelling reason.[16]
Thus, to determine whether the Michigan Constitution provides different or greater protection than the federal constitution, we may examine a variety, but limited, number of pertinent sources. As always, when interpreting a constitutional provision, we begin by examining its specific language. In fact, Michigan constitutional provisions often differ significantly than their federal counterparts.[17] Indeed, differences in language often reflect an intention to deviate from federal law and have an extensive history revealing that intent *317 case law, statutory, or reflected in the convention debates.[18] In the instant case, there exists no textual difference with regard to the right to assistance of counsel between the federal and Michigan provisions. Each uses the same words in the same manner. While this is strong evidence that the provisions grant similar protections, we must also search elsewhere to determine if the contours of the Michigan guarantee are at variance with federal precedent.
Thus, we may examine the circumstances surrounding the adoption of the provision to aid in elucidating the intent underlying the provision. The circumstances surrounding this particular provision provide no evidence to support a finding that at the time of its ratification it was conceived that the constitution would be construed to adopt protections stronger than Strickland. The historical understanding of the provision before the 1963 Constitution did not include such a standard. Neither the Address to the People nor the Constitutional Convention debates suggest that a heightened standard was understood to be incorporated by the constitution. No evidence has been revealed offering insight into why ratifiers or framers may have envisioned such a standard to have been included in the constitution. Unlike other provisions, the right to assistance of counsel was not heavily debated, there were no alterations to its wording, and no controversies engendered regarding its meaning. No crisis of constitutional dimensions *318 existed involving the right. If the convention or ratifiers had intended to alter the meaning of this provision, we can presume "they would have done so by express words...." People ex rel Kennedy v Gies, 25 Mich. 83, 88 (1872) (emphasis in original). They did not.
The Court has outlined other pertinent factors that might signify that an alternative interpretation of the Michigan Constitution, when compared with the federal constitution, was intended:
[S]tate constitutional and common-law history
[S]tate law preexisting adoption of the relevant constitutional provision
[S]tructural differences between the state and federal constitutions
[M]atters of peculiar state or local interest. [People v Collins, 438 Mich. 8, 31, n 39; 475 NW2d 684 (1991); Sitz, supra at 763, n 14.]
In the instant case, there exists no structural differences with regard to the right to assistance of counsel between federal and Michigan provisions. Moreover, no peculiar state or local interests exist in Michigan to warrant a different level of protection with regard to the right to counsel in the instant case. Both the federal and state provisions originated from the same concerns and to protect the same rights. Furthermore, Michigan does not have a unique history with regard to the origin of the right to counsel. Michigan statutory law before the adoption of the constitution did not mandate the reversal of convictions because defense counsel may have deprived a defendant of an otherwise available and likely meritorious defense.
Nor does constitutional or common-law history suggest that the design of the Michigan Constitution was to grant greater protections than Strickland. *319 Strong deference is due contemporaneous and longstanding interpretations of the constitution because they most likely reflect its original understanding. McPherson v Secretary of State, 92 Mich. 377, 383; 52 N.W. 469 (1892), aff'd 146 U.S. 1; 13 S. Ct. 3; 36 L. Ed. 869 (1892). In other words, we should not disregard lightly the "jurisprudential history of this Court...." Sitz, supra at 758. No Michigan case before the ratification of the 1963 Constitution had adopted Justice MALLETT's novel interpretation of the right to counsel. Indeed, our jurisprudential history, until Garcia, narrowly construed the right to counsel.[19] See, e.g., In re Elliot, 315 Mich. 662; 24 NW2d 528 (1946), and authorities cited therein. Most precedent grappling with the issue of the standard of ineffective assistance of counsel did not articulate a standard and applied a very lenient one. See, e.g., People v Boyce, 314 Mich. 608, 610; 23 NW2d 99 (1946); People v Lundberg, 364 Mich. 596, 599-602; 111 NW2d 809 (1961).[20] In fact, recently after the adoption of the 1963 Constitution, the Michigan Court of Appeals adopted the permissive "farce and mockery of justice" standard that, at that time, had been adopted by the federal courts. See, e.g., People v Davison, 12 Mich. App. 429, 434; 163 NW2d 10 (1968). This reluctance to reverse convictions based on all but the most egregious errors of counsel is in complete accord with our long history of denying relief to convicted defendants in the absence of actual prejudice. See, e.g., Strang, supra at 9-10; Wade, supra at 91; People v Hahn, 214 Mich. 419, 427; 183 N.W. 43 (1921); People v Horton, 224 Mich. 139, 142; 194 N.W. 486 (1923). Michigan precedent, *320 therefore, not only fails to support the proposition that the Michigan Constitution requires a stronger standard of protection than Strickland, but compels the opposite conclusion.
The inapplicability of Michigan precedent in the instant case is clearly revealed by the citations of authority to justify an alternative standard. Alaska, Hawaii, and Massachusetts have not been known to adjudicate Michigan constitutional claims, nor is our fundamental document modeled after theirs. Michigan has a very distinct constitutional history, given content by its own constitutional conventions and ratifications in 1835, 1850, 1908, and 1963 and the adjudications arising from them. With all respect, the fact that courts in Hawaii and Alaska, which were admitted as states well over a century after the ratification of Michigan's first constitutional provision on the subject, have interpreted their independent constitutional provisions differently than the United States and Michigan Supreme Courts, proves little. Similarly, while Massachusetts has a long history of constitutional adjudication, it is separate and distinct from our own.
Moreover, those jurisdictions provide weak support for the alternative test. The Alaskan appellate courts, for instance, have recognized that, like Garcia, their test of ineffective assistance of counsel is based, at least in part, "upon an analysis of federal constitutional law and that it is possible that the Alaska Supreme Court may wish to reconsider the prejudice test...." Wilson v State, 711 P2d 547, 549, n 1 (Alas App, 1985).
In Commonwealth v White, 409 Mass 266, 272; 565 NE2d 1185 (1991), quoting Commonwealth v Saferian, 366 Mass 89, 96; 315 NE2d 878 (1974), the Massachusetts Supreme Court, stated that prejudice will be found when "counsel's conduct *321... `has likely deprived the defendant of an otherwise available, substantial ground of defence.'" That court, however, consistently evaluated the effect of alleged attorney misconduct upon the outcome of the case as determined by the jury. White, supra at 275-277.[21]White, therefore, is scarce support for deviating from Strickland.[22]
The contention that a more protective standard than Strickland is justified does find some support in State v Smith, 68 Haw. 304, 309; 712 P2d 496 (1986), in which the court ruled that it would adhere to its prior holding in State v Antone, 62 Haw. 346, 348-349; 615 P2d 101 (1980), that ineffective assistance of counsel could be found if the errors of defense counsel "`resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.'"[23] Unfortunately, the decision is devoid of any discussion of why such a standard fails to meet scrutiny under the Hawaii Constitution.
Not unlike Smith, Justice MALLETT reasons that deviation is justified because the Strickland standard for prejudice is "unduly burdensome" and that it "places too much emphasis on the reliability of the outcome, instead of considering the defendant's due process right to have a meaningful *322 opportunity to affect that outcome." Post at 347, 349.
Yet, this Court is to avoid the "unprincipled creation of state constitutional rights that exceed their federal counterparts." Sitz, supra at 763.[24] Thus, the scope of the constitutional provision is not an issue of policy to be decided by a court of law, but is to be determined by proper constitutional authority.[25]
Adherence to time-honored principles of constitutional construction is essential to prevent the unwarranted creation of Michigan constitutional rights. By examining the constitutional text, the structure of our constitution, the circumstances surrounding its adoption, Michigan jurisprudence, and matters of peculiar or local interest, we ensure that constitutional guarantees maintain their vitality without permitting the creation of rights from whole cloth. While this is often a delicate matter, to hold otherwise grants the Court the license to create constitutional law without a principled basis and in derogation of the constitutional order in which the people, not this Court, create the fundamental law.[26] If the constitution is unwise, *323 it is for the people to amend it.[27]
Reliance upon Michigan precedent based upon federal cases interpreting federal law, however, is not such authority. While leaving aside the propriety of those prior decisions, no Michigan precedent justifies the expansion of the guarantee in the instant case. Only Michigan jurisprudence that interprets Michigan law may be utilized to find a principled basis to expansively interpret the Michigan Constitution, and no such authority exists to justify a standard more protective than Strickland. Similarly, reliance upon foreign authority that has no bearing upon Michigan jurisprudence does not provide a principled basis to discover the intention underlying the Michigan Constitution. As Chief Justice CAVANAGH has observed in a similar context, "[w]here the historical case law" supporting a proposed formulation "constitutes an `arid wasteland,' ... that would seem to be a strong indication that [the formulation] cannot properly be recognized...." Li v Feldt (After Second Remand), 439 Mich. 457, 468; 487 NW2d 127 (1992). Indeed, "[t]he very aridity of the historical case law in this area actually makes it easier to apply" the constitution. Id. at 467.[28]
*324 On the other hand, if the historical origins of the provision at issue reveal that the intention, design, or purpose of our constitutional provision was to mandate a different result, then we must follow that calling.[29] If, for instance, the common-law origins of the provision or the Address to the People evidenced stronger protection than that granted by the federal courts, we would be bound to grant it. In Sitz, for instance, the Court legitimately found that Michigan historical jurisprudence had interpreted a Michigan constitutional clause that, although identically phrased, embodied different principles of law than its federal counterpart. The precedent cited in Sitz involved Michigan case law interpreting the Michigan Constitution. Historical jurisprudence revealed that the Michigan provision intended to provide stronger protection than its federal counterpart with regard to the search and seizure of automobiles on the open highway without individualized suspicion. In the instant case, however, there is no such evidence.[30]
Furthermore, the adoption of the standard formulated by Justice MALLETT would severely undermine the judicial process envisioned by the constitution. Every criminal defense attorney must make strategic and tactical decisions that affect the defense undertaken at trial. Most criminal defense attorneys have a variety of options from which to choose that affect, if not determine, how *325 the jury understands and comprehends the case. Many of these options in a particular case may be contradictory, confusing, incredible, or simply poor. The role of defense counsel is to choose the best defense for the defendant under the circumstances. Strickland permits the defense attorney to do so because, unless the attorney abandons a defense that had a reasonable probability of affecting the jury verdict, the attorney may choose the best defense. Defense counsel must be afforded "broad discretion" in the handling of cases, which often results in "taking the calculated risks which still do sometimes, at least, pluck legal victory out of legal defeat." Lundberg, supra at 600, 601. A standard more protective than Strickland, however, would ensure that many decisions by defense counsel would be subject to attack after a criminal conviction. Convictions would be overturned because convicted criminals could legally argue that defense counsel should have chosen other avenues of defense that, although tenable, did not have a reasonable probability of affecting the jury's verdict. In other words, a criminal defense attorney under such a formulation could be found to have provided ineffective assistance of counsel because he chose the better course.[31]
Furthermore, almost all criminal convictions *326 would come under appellate and subsequent civil scrutiny, not only for fundamental deprivations of constitutional rights, but also because of the judicial imposition of an amorphous standard untested by our courts. Not only is such a result an unjustified departure in Michigan constitutional law, but it would engage Michigan courts in an endless quagmire of determining just what is meant by the standard. Instead of relying upon the well-established precedent developed under Strickland, our courts would be forced to struggle to craft appropriate rulings under a novel standard never evaluated by Michigan courts. As Judge Learned Hand warned, judgments would come under constant attack, and courts "would become Penelopes, forever engaged in unravelling the webs they wove." Jorgensen v York Ice Machinery Corp, 160 F2d 432, 435 (CA 2, 1947).
We are persuaded that, as Justice BRICKLEY has cautioned, we should not find that the Michigan Constitution grants greater protection than the federal constitution with regard to identically worded provisions unless there is a compelling reason founded in history and the intentions of the document to do so. Nash, supra at 214. Absent from Justice MALLETT's opinion is the searching analysis found in Nash, Sitz, or similar cases. No historical documentation suggests that the constitution was intended to provide any more protective meaning to the Michigan Constitution when compared to the federal constitution with regard to the right to the effective assistance of counsel. That this provision does not mandate such a procedural *327 morass is evident from the very uniqueness of the test in Michigan jurisprudence. Michigan courts, therefore, should not be forced to labor under an unprincipled and Court-imposed rule of law, contrary to the first principles of justice and the constitution.
B
Having determined the test to be applied in determining ineffective assistance of counsel claims, we now examine the facts presented in these consolidated cases.
1
In Pickens, defense counsel's failure to properly file notice of an alibi was inexcusable neglect. Her own testimony at the Ginther hearing disclosed that she was aware of Wright's potential alibi testimony nearly three months before trial, yet she failed to file a timely notice or move for an adjournment to correct her error. Hence, her performance fell below the professional norm.
Nevertheless, Pickens has failed to establish the required showing of prejudice. Although the alibi witness was subpoenaed, he did not testify at the evidentiary hearing. Instead, for unexplained reasons, Pickens waived his production. Accordingly, no evidence has been presented to establish that the alibi witness would have testified favorably at trial. In other words, Pickens failed to establish that the alibi witness' testimony would have altered the result of the proceeding. Because Pickens cannot show that there was a reasonable probability that the evidence would undermine confidence in the outcome of the trial, the decision of the Court of Appeals is reversed.
*328 2
Similarly, Wallace contends that his constitutional right to effective assistance of counsel was denied because his attorney failed to properly prepare and present an insanity defense, utterly failed to present a diminished capacity defense, and generally was incompetent.
a
The primary defense theory was that Wallace killed his wife because he was insane and provoked. While the record reveals that defense counsel may have more strongly presented the insanity defense, the record just as clearly reveals that the jury's decision to convict was based on the evidence not counsel's performance.[32] As noted by the trial court when ruling on the ineffective assistance claim at the Ginther hearing:
The case was a very difficult case, at best, because of two things. One, the facts of the case indicated that eye-witnesses observed Mr. Wallace not only shoot his wife in the bar, but lean over and shoot her as she lay on the floor under a table in the bar, and then walk over to the bar and put the gun down on the bar and say, "Oh, it's just my wife," as though "you all don't have anything to worry about, it's just my wife." In other words, "She's so insignificant I had a right to kill her and she needed killing, anyway."
Now that's a very difficult fact for any attorney to have to deal with and present to 12 rational *329 people and expect them to say, "Oh, well, he's not guilty." That is a very difficult set of facts to deal with, number one.
[T]hen he had his client, who had a history of treatment with Dr. Bhama, and since Dr. Bhama was the person who had dealt with Mr. Wallace over a period of time, he was pretty much stuck with Dr. Bhama in terms of his expert as it related to Mr. Wallace's mental problems.
Furthermore, the Ginther hearing failed to reveal how a more seasoned attorney would have salvaged the insanity defense. Review of the Ginther hearing reveals that the jury was presented with a large array of expert testimony regarding the insanity defense. Wallace was unable to present additional evidence not presented to the jury that would have altered the outcome of the case. Thus, any ineffective assistance of counsel with regard to the presentation of the insanity defense does not justify reversal of the conviction.
b
Wallace also contends that counsel's choice not to pursue a diminished capacity defense constituted ineffective assistance of counsel. At the Ginther hearing, defense counsel explained that he purposefully rejected utilizing a diminished capacity defense because the first section of the diminished capacity instruction might have dissuaded the jurors from finding Wallace insane.[33] Furthermore, counsel explained that because evidence was *330 presented refuting that his client was intoxicated at the time of the shooting, a diminished capacity defense instruction would have been detrimental to his client's defense.
As a Court far removed from the passion, dust, and grit of the courtroom, we must be especially careful not to second-guess or condemn with hindsight the decisions of defense counsel. A defense attorney must enjoy great discretion in the trying of a case especially with regard to trial strategy and tactics. See, e.g., Lundberg, supra at 600. After all, the attorney witnessed or conducted voir dire, understood the credibility and demeanor of witnesses and his client, grappled with the evidence and testimony, and sensed the prosecutor's strategy. We only have the cold record.
In the instant case, defense counsel's strategic choice to focus on the insanity defense while down-playing the impaired capacity defense should not be presumed error simply because it was unsuccessful. The evidence of Wallace's guilt was truly overwhelming Wallace shot his wife point blank at least twice before a room of witnesses and shrugged her death off as if he had squashed a bug. The difficulties of the case made any trial extraordinarily difficult for defense counsel, and counsel carefully determined the best defense available. We cannot conclude, therefore, that in light of all the circumstances his performance was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. 690.
Nor does Wallace show that he was prejudiced *331 by counsel's failure to pursue the diminished capacity defense. The lack of specific instructions regarding this defense did not preclude development of the theory that Wallace's long-term alcohol and substance abuse contributed to the alleged temporary insanity he experienced at the time that he shot his wife. Hence, because this theory was adequately presented by counsel, and rejected by the jury, a further instruction on diminished capacity would not have aided the defendant. This is also true because a necessary component of the diminished capacity defense is that the defendant was mentally ill. The jury rejected such a finding when it rejected the guilty but mentally ill verdict. Hence, Wallace was not prejudiced by counsel's choice not to pursue the diminished capacity defense.
c
Finally, Wallace assails counsel's general competence. At times, counsel demonstrated a lack of familiarity with basic rules of procedure and basic rules of law. He consulted written notes and reference material to answer questions put to him by appellate counsel on rules of evidence and procedure, and insisted to the jury and the court that second-degree murder was a specific intent crime. He also asked the trial court who was to bring the directed verdict motion, and the order of closing arguments. He, however, explained at the Ginther hearing that many of these actions were attempts to gain favor from the court. Furthermore, none of these claimed errors prejudiced Wallace. After all, the trial court properly instructed the jury, a motion for directed verdict would have certainly *332 failed, and closing arguments proceeded in the correct order.[34]
While counsel's performance was disturbing at times, the trial court's conclusion when denying the motion for new trial on the ground of ineffective assistance of counsel is unassailable:
Under the circumstances, I have to agree that at times [defense counsel] did appear to be confused in terms of the way in which the case was being presented. In looking at the total facts of the case, though, the only conclusion that I could come to at the time was that the confusion was being caused by the factual situation, the complexity of the defense that he was trying to present, and the other problems that were attendant to representing Mr. Wallace....
* * *
And under the circumstances, I cannot say that Mr. Wallace's retained counsel represented him ineffectively. I think there were probably things that in hindsight we could all say we should have done or could have done, but I cannot say that there was any serious mistakes that he made that resulted in Mr. Wallace being denied a fair trial or effective assistance of counsel.
Wallace's bare allegation that he was denied effective assistance of counsel is insufficient to make it so none of the behavior complained of appears to have affected the outcome of the trial. *333 Thus, Wallace has failed to show that he was prejudiced by his counsel's behavior, and that he was denied effective assistance of counsel.
III
A
Wallace also contends that the trial court erred by denying him the opportunity to obtain certain neurological tests as deemed necessary by an independent psychiatric evaluator.
MCL 768.20a(3); MSA 28.1043(1)(3) provides:
The defendant may, at his or her own expense, or if indigent, at the expense of the county, secure an independent psychiatric evaluation by a clinician of his or her choice on the issue of his or her insanity at the time the alleged offense was committed. The defendant shall notify the prosecuting attorney at least 5 days before the day scheduled for the independent evaluation that he or she intends to secure such an evaluation. The prosecuting attorney may similarly obtain independent psychiatric evaluation. A clinician secured by an indigent defendant shall be entitled to receive a reasonable fee as approved by the court.[[35]]
The trial court denied Wallace this right when it denied him independent neurological testing deemed necessary by his privately financed psychiatrist. The request required that Wallace be transported while in custody and a thirty-day delay of the trial. This Court recognizes that the trial court, in an attempt to promote judicial economy and efficiency, sought to deny Wallace's request for independent testing in light of the delay and earlier *334 neurological tests that had been performed on the defendant less than a week before. Yet, a general interest in promoting judicial economy and efficiency may not deny the clear mandate of MCL 768.20a(3); MSA 28.1043(1)(3).
While the trial court violated MCL 768.20a(3); MSA 28.1043(1)(3), Wallace's conviction may not be set aside unless the error resulted in a miscarriage of justice. MCL 769.26; MSA 28.1096. Neurological tests had already been administered the day defense counsel filed his motion for independent psychiatric tests.[36] While defense counsel was granted the opportunity to obtain an independent evaluation of these earlier tests and to question the doctor who performed the tests, he did not pursue these options to garner further information. Furthermore, the defense expert testified that defendant was suffering from mental illness in light of the pertinent information he possessed. Thus, Wallace's defense was not prejudiced by the absence of independent tests.
The trial court's error, therefore, did not constitute a miscarriage of justice requiring reversal of Wallace's conviction.
IV
Finally, Wallace contends that his conviction should be reversed because of the admission of statements made by him and others as testified to by a prosecution expert rebuttal witness while explaining how he diagnosed Wallace's mental state.
Generally, evidence underlying the basis of an *335 expert opinion is admissible. MRE 703, 705.[37] Furthermore, MCL 768.20a(5); MSA 28.1043(1)(5) allows the introduction of statements made by a defendant to personnel of the Center for Forensic Psychiatry regarding the defendant's mental illness or insanity at the time of the alleged offense. Such evidence is relevant because it places the expert's opinions into a factual context, thereby enabling the trier of fact to determine the weight due an expert's opinion.
In the instant case, the prosecution's rebuttal witness' testimony was relevant for the limited purpose of evaluating the credibility of his conclusion that Wallace was not mentally ill or legally insane at the time of the shooting. See People v James Robinson, 417 Mich. 661, 664; 340 NW2d 631 (1983).
Wallace correctly notes, however, that relevancy is not the sole determinant of admissibility.[38] MRE *336 403 requires the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
The disputed testimony concerns innuendo of sexual perversion, a statement that Wallace talked to his attorney and "formulated plans," and a recitation of what a police officer told him regarding his statements and actions on the night of the killing. Kolito also related Wallace's statements that he had observed his estranged wife having sex with another man, that his wife alleged that he molested their daughter, and that he slept with their daughter until she was four years old. A curative instruction was read by the trial court after Kolito's testimony.
Applying MRE 403, we do not find that the trial court abused its discretion in admitting Kolito's testimony. There is no doubt that Kolito's testimony was prejudicial to Wallace. The inquiry pursuant to MRE 403, however, is whether the disputed evidence was unfairly prejudicial. After all, presumably all the evidence presented by the prosecutor was prejudicial because it attempted to prove that defendant committed the crime charged. Our Court of Appeals has explained:
Obviously, evidence is offered by an advocate for the always clear, if seldom stated, purpose of "prejudicing" the adverse party. Recognizing this, the Supreme Court in adopting MRE 403 identified only unfair prejudice as a factor to be weighed *337 against probative value. This unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock. [People v Goree, 132 Mich. App. 693, 702-703; 349 NW2d 220 (1984).]
In determining that Kolito's testimony was not unfairly prejudicial, we note that the relevancy of the testimony was bolstered by the defense counsel's repeated attacks on Kolito's credibility. The defense "opened the door" to this testimony by calling into question Kolito's conclusion that Wallace was not mentally ill.[39] Furthermore, the background testimony helped explain Wallace's state of mind leading up to the shooting. While the testimony was damaging to Wallace's defense, it was so because it bolstered Kolito's conclusion that he was not mentally ill when he shot his wife.
*338 Because the testimony was relevant and not unfairly prejudicial, the curative instruction given by the trial court sufficiently removed any potential unfair bias generated from the testimony. Thus, we affirm the admission of the evidence.
V
At issue in these consolidated cases is whether the Michigan constitutional guarantee of the effective assistance of counsel provides a criminal defendant with greater protections than its federal counterpart. We hold that the intention underlying the Michigan Constitution does not afford greater protection than federal precedent with regard to a defendant's right to counsel when it involves a claim of ineffective assistance of counsel. Thus, to find that a defendant's right to effective assistance of counsel was so undermined that it justifies reversal of an otherwise valid conviction, a defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced the defendant as to deprive him of a fair trial. Accordingly, we affirm the judgment of the Court of Appeals in People v Wallace and reverse the judgment of the Court of Appeals in People v Pickens because neither defendant is capable of showing that he was denied effective assistance of counsel.
Also at issue in Wallace is whether the denial of independent defense neurological tests by the trial court mandates reversal of defendant's conviction. While the trial court violated MCL 768.20a(3); MSA 28.1043(1)(3) by denying defendant's request for the tests, we affirm the conviction because the error was harmless under the circumstances.
Furthermore, we find that the admission of *339 statements made by Wallace and others regarding the shooting and his past behavior as testified to by the prosecutor's rebuttal witness was not error because the statements were relevant to rebut Wallace's claim of insanity and were not unfairly prejudicial.
Hence, we affirm the judgment of the Court of Appeals in Wallace and reverse the judgment of the Court of Appeals in Pickens.
BRICKLEY, BOYLE, and GRIFFIN, JJ., concurred with RILEY, J.
BOYLE, J. (concurring).
I have signed Justice RILEY's opinion because I fully agree with her result and with the conclusion that the right to effective assistance of counsel in the Michigan Constitution does not create a higher standard than Strickland v Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). I write separately simply to observe that, while I feel constitutional analysis should begin with an examination of history, I do not agree that it necessarily ends there. For example, I do not agree with the statement that
[u]nless a searching analysis of the understandings of the ratifiers and framers, as well as the historical circumstances surrounding the adoption of a provision, reveal otherwise, the Court must refrain from finding (or creating) such rights. [Ante at 316, n 16.]
The analytical difficulty, of course, is that the text and surrounding circumstances so rarely reveal otherwise. Nevertheless, when required to answer the question, we must acknowledge other principled lines of inquiry, while acknowledging the primacy of the language of the document.
*340 CAVANAGH, C.J. (concurring in part and dissenting in part).
The purpose of the effective assistance of counsel requirement is to ensure fair trials. Because I believe that the ultimate focus must rest with the fundamental fairness of a trial, on the basis of the totality of the circumstances, and not just with the factual accuracy of a trial's result, I endorse Justice MALLETT's standard as the proper test to be used to evaluate ineffective assistance of counsel claims. Accordingly, I concur with part I of Justice MALLETT's concurring opinion.
Applying Justice MALLETT's standard to Pickens, I concur with the Court that defendant Pickens was provided effective assistance of counsel.
Applying Justice MALLETT's standard to Wallace, I agree with Justice LEVIN that, for all the reasons set forth in parts II and III of his dissent, defendant Wallace was indeed denied effective assistance of counsel, and is therefore entitled to a new trial. Accordingly, I concur with parts II and III of Justice LEVIN's dissenting opinion.
Concerning the other two substantive issues raised in Wallace, I adopt Justice RILEY's conclusion that neither the trial judge's decision to refuse further neurological testing, nor his decision to admit the disputed rebuttal testimony, taken alone, warrants granting defendant Wallace a new trial. Accordingly, I concur with parts III and IV of Justice RILEY's majority opinion.
MALLETT, J. (concurring in part and dissenting in part).
The primary issue in these consolidated criminal cases is what standard should apply in determining if a criminal defendant's conviction should be set aside on grounds of ineffective assistance of counsel. More precisely, we granted leave to consider if we should adopt the two-pronged test for ineffective assistance of counsel as set forth by *341 the United States Supreme Court in Strickland v Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). Today, we adopt the Strickland test that requires a criminal defendant to show: (1) that counsel's performance was deficient, falling below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. I write separately because I would hold that to show prejudice under the Michigan Constitution, the defendant must prove that there is a reasonable probability that his attorney's incompetence deprived him of an otherwise available and likely meritorious defense.
Applying this test, I would reverse the decision of the Court of Appeals, affirming the conviction in People v Pickens, and affirm the Court of Appeals affirmance of the conviction in People v Wallace.
I
A
These consolidated cases place squarely before this Court the question what standard for determining ineffective assistance of counsel is to be applied in this state.
Before the United States Supreme Court's decision in Strickland, Michigan Court of Appeals panels followed a bifurcated test for ineffective assistance that was alluded to in People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976).[1] This bifurcated *342 test allowed defendant a new trial on grounds of ineffective assistance of counsel if he could show: (1) that his trial counsel did not perform at least as well as a lawyer with ordinary training and skill in the criminal law, conscientiously protecting his client's interests undeflected by conflicting considerations, or (2) that his trial counsel made a serious mistake, without which the defendant would have had a reasonably likely chance for acquittal. Id. at 264-266.
Pursuant to the Garcia test, as long as a criminal defendant could show that his attorney's performance fell below the professional norm, he need not show that he was prejudiced by his counsel's ineffectiveness. Only when his counsel performed with otherwise ordinary skill, but made a serious mistake, did the defendant need to show that he was prejudiced by this mistake.
In Strickland, the United States Supreme Court held that to successfully claim ineffective assistance of counsel under the Sixth Amendment the defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense so that the trial could not be relied on as having produced a just result. This standard differs from that developed following Garcia, because pursuant to Strickland a defendant must always prove actual prejudice.
After Strickland, Court of Appeals panels have taken differing views on whether a showing of prejudice is required in order for a state conviction to be overturned and a new trial granted on grounds of ineffective assistance of counsel.[2] Today, I join with the majority and follow Strickland in *343 adopting a two-pronged test as the standard to be applied pursuant to the Michigan Constitution's right to counsel provision, Const 1963, art 1, § 20, and due process guarantee, Const 1963, art 1, § 17.
1
To successfully claim ineffective assistance of counsel, a defendant must show that his attorney performed below an objective standard of reasonableness under prevailing professional norms. This is the first prong of the Strickland test. The Court elaborated that the defendant must overcome a "strong presumption" that his counsel's conduct constituted reasonable trial strategy. Strickland at 689. It also provided the following guidance for determining when counsel's performance falls below the level required to ensure a reliable result at trial:
[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. [Id. at 690.]
The approach taken in Strickland for determination of the reasonableness of counsel's conduct is consistent with Michigan precedent. In adopting the first prong of the Strickland test, the standard for incompetence set forth by this Court in Garcia, wherein we determined that defense counsel must perform at least as well as a lawyer with ordinary *344 training and skill in the criminal law and must conscientiously protect his client's interests, undeflected by conflicting considerations is reaffirmed. Garcia at 264. Action appearing erroneous from hindsight does not constitute ineffective assistance if the action was taken for reasons that would have appeared at the time to be sound trial strategy to a competent criminal attorney. Id. at 266.
2
Pursuant to Strickland, a showing of incompetency is not enough to successfully challenge a conviction on ineffective assistance of counsel grounds. Strickland further requires a defendant to show that his counsel's errors prejudiced the defense so as to deprive the defendant of a fair trial.
The prejudice requirement has constitutional origins, deriving from the fair trial guarantee of the Due Process Clauses of the Fifth and Fourteenth Amendments. As noted in Strickland:
In a long line of cases that includes Powell v Alabama, 287 U.S. 45 [53 S. Ct. 55; 77 L. Ed. 158] (1932), Johnson v Zerbst, 304 U.S. 458 [58 S. Ct. 1019; 82 L. Ed. 1461] (1938), and Gideon v Wainwright, 372 U.S. 335 [83 S. Ct. 792; 9 L. Ed. 2d 799] (1963), this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause....
* * *
The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the *345 outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. [Id. at 684-685, 691-692.]
I read Strickland as basing the right to effective assistance on both the Sixth Amendment Right to Counsel Clause and on the Due Process Clauses. I view the right to effective assistance of counsel as involving two components. The first is procedural, the second substantive. The procedural component derives from the right to counsel provision and guarantees the right to a competent attorney. The substantive component has due process origins and provides a right to representation that leads to a fair trial.[3]
A prejudice requirement is also consistent with the harmless error doctrine. Michigan recognizes this doctrine in various contexts. The Legislature has suggested its approval of the doctrine in MCL 769.26; MSA 28.1096, which requires that even upon a demonstration of an error by counsel, there also must be a showing of actual prejudice. Similarly, MCR 2.613(A) recognizes harmless error, defining the rule as follows:
An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. [Emphasis added.]
In addition, this Court has voiced agreement *346 with Chapman v California, 386 U.S. 18; 87 S. Ct. 824; 17 L. Ed. 2d 705 (1967), holding that constitutional errors committed during trial will not merit automatic reversal. Instead, reversal is warranted only where: (1) the error is so offensive to the maintenance of a sound judicial system that it never can be regarded as harmless, or (2) if not so basic, the error is not harmless beyond a reasonable doubt. People v Michael M Robinson, 386 Mich. 551, 563; 194 NW2d 709 (1972).
In People v Mosko, 441 Mich. 496, 502-503; 495 NW2d 534 (1992), this Court stated:
Rules of automatic reversal are disfavored, for a host of obvious reasons. The doctrine of harmless error has been adopted by the Legislature and by this Court, and has been applied by this Court in many different contexts. As this Court said in [People v] Beach [429 Mich. 450, 491; 418 NW2d 861 (1988)], "We require a fair trial, not a perfect trial."
Given the value this Court and our Legislature have given to the doctrine of harmless error, it would be inconsistent and make little sense to allow reversal of a conviction on ineffective assistance of counsel grounds without some showing of prejudice.
Furthermore, this Court has cited with approval Coleman v Alabama, 399 U.S. 1, 9; 90 S. Ct. 1999; 26 L. Ed. 2d 387 (1970), wherein the United States Supreme Court applied a harmless error analysis to the denial of the right to counsel at a preliminary examination. People v Hall, 435 Mich. 599, 605-606; 460 NW2d 520 (1990). In so doing, this Court has indicated a departure from the Michigan Court of Appeals decisions that rely on Beasley v United States, 491 F2d 687 (CA 6, 1974), in holding that the harmless error doctrine (or a *347 prejudice inquiry) does not apply where the attorney's errors fail the "ordinary skill" test. To the extent that Garcia has been interpreted as not requiring a showing of prejudice when an attorney fails to perform at the level of ordinary skill possessed by a competent criminal attorney, it should be overruled.
B
While I find that a prejudice requirement has constitutional underpinnings, comports with the harmless error doctrine, and various policy reasons support such a requirement, I would not adopt Strickland's definition of prejudice in its entirety because that standard is unduly burdensome.
In interpreting the Michigan Constitution, this Court is compelled neither to accept nor reject federal interpretations of parallel provisions of the United States Constitution. Instead, "[i]n each instance, what is required of this Court is a searching examination to discover what law `the people have made.'" Sitz v Dep't of State Police, 443 Mich. 744, 759; 506 NW2d 209 (1993), citing People v Harding, 53 Mich. 481, 485; 19 N.W. 155 (1884).
While the text of the state and federal due process and right to counsel provisions are virtually identical, this Court is free to uphold greater protections pursuant to Const 1963, art 1, §§ 17 and 20, for the citizens of this state if we find a principled basis in the history of our jurisprudence to do so. Sitz, supra at 763.
Although the prosecution, citing People v Bellanca, 386 Mich. 708; 194 NW2d 863 (1972), asserts that Michigan has interpreted the state constitutional right to counsel consonant with that set forth in the federal constitution, the Bellanca *348 decision addressed only the right to discovery and counsel at a preliminary examination. It does not stand for the general proposition that the state right to counsel is entirely coextensive with its federal counterpart.
In other cases, this Court has decided issues relating to counsel without citing federal authority. See People v Cavanaugh, 246 Mich. 680; 225 N.W. 501 (1929), and People v Lundberg, 364 Mich. 596, 599-602; 111 NW2d 809 (1961). Furthermore, although not commanding a full majority, in People v Wright, 441 Mich. 140; 490 NW2d 351 (1992), three justices determined that Michigan's Constitution afforded greater protection than did the United States Supreme Court's interpretation of the federal constitution, where a suspect is denied knowledge of the presence of retained counsel and then waives his right to counsel.[4]
Also, in People v Jackson, 391 Mich. 323, 338-339; 217 NW2d 22 (1974), this Court acknowledged that it was announcing a rule applicable to the right to counsel at photographic show-ups that was more expansive than the United States Supreme Court had set forth on the same issue.
Thus, there is historical authority to depart from Strickland and to establish our own standard regarding the applicable definition of prejudice.
The prejudice requirement set forth in Strickland requires a defendant to show that there is a reasonable probability that, but for counsel's errors, *349 the result of the proceeding would have been different. In the context of a criminal trial, the Strickland definition of prejudice requires the defendant to show that there is "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. 695.
This definition of prejudice places too much emphasis on the reliability of the outcome, instead of considering the defendant's due process right to have a meaningful opportunity to affect that outcome.[5]
Other jurisdictions have also rejected the Strickland standard for determining prejudice. For example, the Massachusetts Supreme Court, while citing Strickland, defines the inquiry under the prejudice prong as whether counsel's deficiencies caused "prejudice to the defendant's case." Commonwealth v White, 409 Mass 266, 275; 565 NE2d 1185 (1991). That court's analysis continues to rely on the standard it developed before Strickland, allowing reversal if the attorney's unprofessional errors "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v Saferian, 366 Mass 89, 96; 315 NE2d 878 (1974).
Hawaii has also rejected Strickland's prejudice test, noting that it has been criticized as unduly difficult for defendants. Hawaii instead requires a defendant to show that counsel's errors or omissions "`resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.'" State v Smith, 68 Haw. 304, 309; 712 *350 P2d 496 (1986); State v Antone, 62 Haw. 346; 615 P2d 101 (1980). Similarly, Alaska continues to rely on a pre-Strickland test for prejudice that requires the defendant to show that his attorney's incompetence "contributed to the conviction." Wilson v State, 711 P2d 547, 549 (Alas App, 1985); Jackson v State, 750 P2d 821, 824-825 (Alas App, 1988).
The approaches taken by these jurisdictions have in common a refusal to focus entirely on the effect an attorney's errors have on the outcome. Instead, the various tests allow an inquiry into whether a defendant had a meaningful opportunity to have counsel's assistance in presenting a defense. While this is an appropriate inquiry, it must be tempered by the policy concerns underlying the harmless error rule.
I believe that the proper balance is struck by the following proposed standard for prejudice. To successfully claim ineffective assistance of counsel, a defendant must show that his attorney's incompetence has deprived him of an otherwise available and likely meritorious defense.
To meet this standard, a defendant must show either that his attorney's errors precluded putting forth a likely meritorious defense altogether, or that the errors in presenting what would likely have been a meritorious defense were so serious that the defendant was in essence denied the right to have the assistance of counsel as envisioned by Const 1963, art 1, § 20.
The majority's criticism of my proposed refinement to the Strickland prejudice prong reflects a basic misunderstanding of both Strickland and my proposed test. The majority contends that under my proposed test, "[c]onvictions would be overturned because convicted criminals could legally argue that defense counsel should have chosen other avenues of defense that, although tenable, *351 did not have a reasonable probability of affecting the jury's verdict." Ante at 325. It further contends that an attorney could be found ineffective for choosing the "better course." Id. Such contentions ignore the first prong of the Strickland test. If indeed a defense attorney chose not to pursue a line of defense that did not have a reasonable probability of affecting the jury's verdict, or was in fact the better course, the first prong of the Strickland test would not be satisfied.[6] Therefore, the issue of prejudice would not even be reached.
Further, the majority undertakes an excessive "original intent" analysis to criticize my proposed refinement of Strickland's prejudice prong. The analysis is curious in two respects. First, because the concept of ineffective assistance is fairly recent, there is not a lot of history to draw upon in evaluating the appropriate test to apply in Michigan. There is no evidence that Strickland's prejudice standard was thought of until 1984, when the Supreme Court invented it. It was not in the minds of the framers of the United States Constitution or the Michigan Constitution of 1963. Yet, the majority suggests that without sufficient historical jurisprudence, this Court must blindly adopt, verbatim, the test espoused by the United States Supreme Court.
Second, the majority implies that my proposed standard constitutes "the creation of rights from whole cloth." Ante at 322. Rather, my proposed standard is merely a refinement of the Strickland test, which as demonstrated by the dissent is capable of differing interpretations. It is appropriate *352 for this Court to refine and clarify United States Supreme Court jurisprudence in light of the past history and jurisprudence of this state. Indeed, it is our duty. The majority's narrow application of Sitz severely constricts our ability to answer this calling.
II
Having analyzed and described my proposed test, I now turn to the facts presented in these consolidated cases.
While I agree with the Court of Appeals that the performance of Mr. Pickens' trial attorney was deficient, his claim cannot succeed because he has not shown that he was prejudiced by his counsel's errors.
Attorney Greenberg indicated to Judge Moore that she intended to call the alleged alibi witness, Mr. Wright. Her own testimony at the Ginther hearing disclosed that she was aware of Wright's potential alibi testimony nearly three months before trial. Her failure to file a timely notice of alibi and failure to move for an adjournment in order to correct her error establishes a level of performance falling below the professional norm.
However, Mr. Pickens has failed to establish the required showing of prejudice. He was not able to show at the evidentiary hearing that the failure to secure the alleged alibi witness' testimony deprived him of an otherwise available and likely meritorious defense.
Although Mr. Wright was subpoenaed, he did not testify at the evidentiary hearing. Instead, for unexplained reasons, defense counsel waived the witness, stating that he had discussed the matter at length with Mr. Pickens. No evidence was ever presented at the evidentiary hearing to establish *353 that the alleged alibi witness would have indeed testified favorably to the defense at trial. Because there was no showing that an alibi defense, as might have been provided by Mr. Wright, would likely have been meritorious, the defendant has not shown prejudice. Therefore, the decision of the Court of Appeals should be reversed.
Mr. Wallace's ineffective assistance claim likewise fails under my proposed test. Although he voices numerous complaints about his counsel's performance, for purposes of analysis I will combine them into three categories.
First, defendant Wallace complains that his attorney failed to properly prepare and present an insanity defense. Second, and related to the first complaint, Mr. Wallace claims ineffective assistance because his attorney "failed to recognize, failed to investigate, failed to file the statutory notice and failed to prepare a diminished capacity defense...."
Attorney Graziotti's alleged deficient performance in preparing and presenting the insanity and diminished capacity defenses overlap to a large degree. I will therefore discuss these two categories together. Diminished capacity is a specialized form of the insanity defense. It focuses on the role of alcohol and substance abuse in the claimed mental illness. While attorney Graziotti abandoned the specific specialized defense, he was still able to present evidence of alcohol and substance abuse in developing the more general insanity defense.
The primary theory of the defense was that the defendant had committed the crime while insane and under provocation. Mr. Graziotti indicated to the court that he did not want the diminished capacity instruction because he felt that the first part of the instruction might dissuade the jurors *354 from finding the defendant insane.[7] While the record reveals that Mr. Graziotti could have done a better job of presenting the insanity defense, we cannot determine that his decision not to focus on the alcohol and substance abuse aspect of the insanity defense was not made for reasons of sound trial strategy. Therefore, I cannot conclude that in light of all the circumstances his performance was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. 690.
Furthermore, Mr. Wallace's claim of ineffective assistance based on the alleged errors in his attorney's handling of the insanity defense fails because prejudice has not been established.
Nothing new was adduced at the Ginther hearing to indicate that counsel's poor presentation of the insanity defense deprived the defendant of a likely meritorious defense. After reviewing the entire transcript of the Ginther hearing, I agree with the prosecutor's statement that "the jury heard everything the experts had to say in this case; if there was more the jury should have heard, from Dr. Bhama, or from the prosecution's experts, by way of cross-examination, this `extra' *355 information was never brought out at the Ginther hearing. In other words, Defendant has not established prejudice."
Likewise, no prejudice resulted from attorney Graziotti's failure to pursue diminished capacity. As already mentioned, lack of specific instructions regarding this defense did not preclude development of the theory that defendant's long-term alcohol and substance abuse contributed to the temporary insanity he experienced at the time that he shot his wife. Because this theory was adequately presented by counsel, and rejected by the jury, a further instruction on diminished capacity would not have aided the defendant.[8]
Finally, defendant complains of his counsel's general incompetence and ignorance of the criminal law. He cites several specific shortcomings. For instance, Mr. Graziotti demonstrated a lack of familiarity with basic rules of procedure and basic rules of law. He had to consult written notes and reference material to answer questions put to him by appellate counsel on basic rules of evidence and procedure. He insisted to the jury and the court that second-degree murder was a specific intent crime. He asked the trial court who was supposed to bring a directed verdict motion, and what was the order of closing arguments. Mr. Graziotti's explanations at the Ginther hearing for these specific examples of alleged incompetence at trial were that he was just trying to engage the court in conversation.
Defendant also complains about attorney Graziotti's untruthfulness, either at the Ginther hearing, or during trial, regarding when he obtained *356 and reviewed a crucial prosecution expert's report. At trial he stated that he did not know Mr. Kolito's report would be used and had not studied it or discussed it with the defendant until the night before trial. However, when confronted with his trial statements at the evidentiary hearing he explained that he had gotten the report and had immediately studied it with defendant some eleven days before the trial and that his assertions to the court were merely an attempt to "try and lean on the court" for more time.
There is no need to discuss whether these instances of alleged incompetence deprived defendant of the "counsel" envisioned under the Sixth Amendment, Strickland, 466 U.S. 687. Again, the defendant has not shown that these complaints resulted in prejudice. As noted by the prosecution, "The trial judge properly instructed the jury on the elements of first- and second-degree murder; a motion for directed verdict would have surely been denied; and closing arguments proceeded in the order they were supposed to."[9]
Because defendant has not shown that his attorney's performance deprived him of an otherwise available and likely meritorious defense, I would find that his ineffective assistance claim must fail.
LEVIN, J. (concurring in Pickens and dissenting in Wallace).
I join in affirming Dwayne Pickens' conviction because he was not denied the effective assistance of counsel.
I would hold, however, that Ralph Wallace was *357 prejudiced by his lawyer's deficient representation, and would reverse the judgment of the Court of Appeals and remand for a new trial.
I
Judicial vindication of the right to the effective assistance of counsel reduces the risk that an innocent person was convicted, and provides some assurance that a conviction was obtained through fundamentally fair procedures.[1] The standard for determining whether there was ineffective assistance of counsel should seek to secure procedural fairness, and legal representation that enables an accused to meet the charges.
The majority adopts the standard for determining ineffective assistance set forth in Strickland v Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). The majority expounds a textual and historical analysis of Michigan's adoption of the substance of the Sixth Amendment, citing state constitutional and common-law history, state law before adoption, structural differences between the state and federal constitutions, and matters of peculiarly state or local interest.[2]
The issue in Strickland concerned federal habeas corpus relief for ineffective assistance rendered at the sentencing phase of a state murder conviction. This Court, in arriving at a fair and workable standard may seek guidance from federal law, but is not bound to do so, as the majority explains.[3]
A federal constitutional standard is necessarily *358 a minimum standard. Otherwise, the United States Supreme Court would be imposing its own policy preferences on the fifty states. It is understandably reluctant to do so.
The states are free to apply a standard higher than the federal standard for habeas corpus relief, a standard higher than the standard required by the United States Supreme Court of the least progressive state in the union.
It appears that a few states, Alaska,[4] Hawaii,[5] Massachusetts,[6] have adopted a standard more *359 protective of the right to the effective assistance of counsel than the one set forth in Strickland.
I would, for reasons stated in part v, adhere to the standard set forth in People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976).[7]
II
A reviewing court is obliged to examine the record to determine whether a convicted defendant claiming ineffective assistance was fairly represented by counsel. Such review will not indulge hindsight analysis of strategy, nor require perfect representation. Whatever test is applied, be it Strickland, Garcia, or the former "sham and mockery" test,[8] a reviewing court should examine the challenged representation in light of the purpose of the Sixth Amendment. The inquiry should focus on the fundamental fairness of the proceeding.[9]
To justify reversal under the Strickland standard, a convicted defendant must show that the lawyer'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." The convicted defendant must further show that *360 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 is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable."[10]
A
The errors of Wallace's lawyer were objectively unreasonable and prejudicial. The prejudice in this case arose from the failure to present a diminished capacity defense, coupled with cumulative lawyer errors concerning procedural and substantive law. Serious lawyer error pervaded the trial, undermining confidence that the verdict convicting Wallace of first-degree murder was based on the evidence rather than a "breakdown of the adversarial process."
The defense presented two theories: Wallace was legally insane as a result of long-term alcohol abuse and organic brain syndrome, and Wallace was guilty at most of manslaughter based on legally adequate provocation of marital infidelity.
Before the opening statements, the trial judge asked Wallace's lawyer several times whether he was offering a diminished capacity defense. After the lawyer's evasive and confusing responses to *361 the judge's questions, the judge said that, absent direction from the defense, he would not provide an instruction on diminished capacity.
The jury was instructed on first-degree murder, second-degree murder, not guilty by reason of insanity, guilty but mentally ill, and voluntary manslaughter.
The majority concludes that Wallace was not prejudiced because evidence of "guilt was truly overwhelming."[11] The concurring opinion states that the author was unable to determine that the lawyer's decision "not to focus on the alcohol and substance abuse aspect of the insanity defense was not made for reasons of sound trial strategy."[12]
The lead and concurring opinions thus ignore that factual guilt was not an issue. Wallace admitted shooting his wife. The sole issue was the degree of criminal responsibility and the level of culpability.
B
The evidence, both lay and expert, supported a diminished capacity defense.[13] Wallace's psychiatric expert, who was also his treating physician, testified that Wallace suffered from organic brain *362 syndrome, brought about by long-term alcohol abuse. Dr. Bhama reported Wallace's IQ as 82, considered dull/normal on the basis of objective medical testing, and corroborated his findings with a CT scan. Dr. Bhama testified that Wallace had suffered hallucinations and blackouts from 1982 to 1983.[14]
Dr. Bhama opined that Wallace suffered from mental illness, a substantial disorder of thought or mood, that prevented him from conforming his conduct to the requirements of the law. The essence of the psychiatrist's opinion was that alcohol abuse syndrome and resultant physical deterioration of the brain over a forty-year period caused the underlying mental illness, rendering Wallace insane at the time of the shooting.
Wallace and his supervisor, Larry Truxal, testified that Wallace had taken a prescription tranquilizer on the day of the shooting, and that Wallace was unusually agitated and incoherent just hours before the murder. Wallace testified regarding an hallucination that occurred moments before the shooting, and that he could not recall the sequence of events immediately before or after his wife's murder.
The lawyer acknowledged that he was aware that Wallace's IQ was in the 80's, of Wallace's history of hallucinations, drug and alcohol abuse, previous inpatient psychiatric hospitalizations, and of his use of Elavil, Tolectin, and Serax, prescription medications prescribed for another person, and ingestion of two to eight beers shortly before the shooting.
Wallace's lawyer was alerted to the possibility that diminished capacity might provide a defense well in advance of trial. The prosecutor's expert *363 psychologist recommended a diminished capacity evaluation at a pretrial hearing on forensic testing two months before trial. At the hearing on Wallace's motion for a private forensic evaluation, his lawyer said that the results of such an evaluation would be delivered to the prosecutor, and referred "specifically to the diminished capacity so that he'll be aware of it, so that he won't overlook that."
During voir dire, Wallace's lawyer informed prospective jurors that they would hear testimony concerning a diminished capacity defense. Although Wallace's lawyer indicated to the judge that he was not advancing a diminished capacity theory, he argued in opening that, at the time of the murder, longstanding alcohol addiction, preexisting mental illness, coupled with prescription medication and an hallucination at the bar where he shot his wife, resulted in his client not functioning at "full capacity," and that he thus was not guilty of first-degree murder.[15]
The prosecutor's expert witnesses testified that while Wallace did indeed suffer from long-term alcohol abuse and had an IQ of 89, he was not legally insane. On the basis of the sequence of events and the eyewitness testimony,[16] it is not *364 surprising that the jury rejected the insanity defense and found Wallace sane.
Wallace's lawyer failed to marshal the medical evidence and facts preceding the murder to mount a coherent defense. He erroneously stated at the Ginther hearing that insanity and diminished capacity are mutually exclusive defenses. Although the standard jury instruction respecting the diminished capacity defense had been brought to his attention by the judge, and explained by the prosecutor, Wallace's lawyer rejected, without reason, a substantial defense.
The decision of Wallace's lawyer not to pursue a diminished capacity defense cannot be regarded as sound trial strategy. Dr. Bhama's testimony, and Wallace's and Truxal's testimony of alcohol and drug consumption, supported a defense that Wallace was unable to form the requisite specific intent at the time of the murder.
Had the jury been instructed on diminished capacity, the jurors would have deliberated on whether the combined effects of retardation, preexisting mental illness, alcohol abuse syndrome, tranquilizers and the documented psychiatric history rendered Wallace unable to form the specific intent for first-degree murder.
The lawyer said he did not present a diminished-capacity defense because, as he explained at the Ginther hearing, "I felt I didn't want to present them. Those I left out, I left out on purpose. I didn't feel they were that good." It appears that *365 the lawyer simply was not aware, nor did he understand the significance of the defense. "I want to confess to you that in the case I was arguing here, I thought his instructions were fine. And if he had confusion, the Judge, I added to his confusion. My hope was that confusion would benefit Mr. Wallace."
C
Diminished capacity is in the nature of a mitigation defense, reducing first-degree murder to a lesser offense as a result of a jury finding that specific intent was not established beyond a reasonable doubt. In the instant case, the jury might have accepted, if instructed, a diminished capacity defense, which allows the jury to consider past history of mental illness and retardation coupled with consumption of alcohol and medication. Failure to present mitigation evidence in a capital case is objectively unreasonable and prejudicial to the accused.
State and federal courts, applying a Strickland analysis, have accorded special consideration to mitigation claims, at both the guilt and sentencing phases. Counsel's failure to investigate or present evidence of mental illness, or other "humanizing" mitigation factors has been held to constitute ineffective assistance.[17]
The New Jersey Supreme Court reversed a conviction in which the lawyer failed to recognize and pursue a diminished capacity defense, finding error requiring reversal at both the guilt and the *366 sentencing phases.[18] With overwhelming evidence of mental disturbance,[19] the lawyer's failure to pursue the defense was found to have materially contributed to the conviction, and that there was a reasonable probability that the result at the guilt phase would have been different. The court vacated the sentence for failure to interview potential witnesses regarding mental state, although the lawyer knew that the defendant was previously hospitalized with a psychiatric diagnosis.
Failure to assert a statutorily available defense supported by evidence was found to be error requiring reversal under a Strickland analysis by the Texas Court of Criminal Appeals.[20] Because the jury was precluded from giving effect to the defense, "[t]hat in itself undermines our confidence in the conviction sufficiently to convince us that the result of the trial might have been different had the instruction been requested and given."[21]
In the instant case, the lawyer's failure to assert an available, meritorious defense, with significant factual and legal support, similarly undermines confidence in the verdict, satisfying the prejudice prong of an ineffective assistance claim.
III
A court may find prejudice on the basis of the totality of counsel's errors and omissions.[22] The *367 failure of Wallace's lawyer to raise the viable diminished capacity defense was only one error among many. Cumulative error is evident in the lawyer's lack of preparation, and ignorance of basic principles of substantive and procedural law.[23]
A
Wallace's lawyer made numerous errors of law. He did not understand the difference between first- and second-degree murder.[24]
*368 Wallace's lawyer did not know that the trial judge hears a motion to disqualify the judge.[25] He was also unaware that a forensic evaluation was required within sixty days of filing notice of intent to raise an insanity defense. He incorrectly characterized his questions and comments during voir dire as "testimony," and was surprised to learn that the court is required to instruct on second-degree murder in a first-degree murder prosecution.
Wallace's lawyer did not know, until informed by the judge, that a defendant, not the prosecutor, moves for a directed verdict. His ignorance regarding the purpose of opening statement was apparent in his objection to the prosecutor's "telling of the whole story" in his opening statement, and in his request for the same "leeway" when it was his turn for opening statement.
Wallace's lawyer did not understand the Rules of Evidence. He repeatedly offered hearsay testimony and documents that were hearsay during the five-day trial.[26] In responding to numerous hearsay objections, he merely requested "a little latitude from the court," and not once cited a specific exception to the hearsay rule.
He misunderstood MRE 404. On numerous occasions, he sought to introduce irrelevant character evidence concerning the victim.[27] When cautioned by the Court that certain character evidence was prohibited under "404," he asked "Michigan Court Rule?"
*369 Wallace's lawyer was unaware that an expert can testify about his opinions based on a previously prepared report. He seemed similarly unaware that a trial transcript could be made available to the defense upon request. In closing, he improperly referred to possible punishment for first-degree murder. He made what the judge called a "glaring mistake" he submitted a proposed jury instruction that requested that Wallace be placed in an institution for treatment of the insane.
B
Wallace's lawyer failed to prepare adequately for trial. He did not provide Dr. Bhama with psychiatric testing data from the Recorder's Court forensic evaluation that Dr. Bhama had requested. This was a serious error of omission, as Wallace's mental state was crucial to the defense.
In a first-degree murder prosecution, with insanity as the central defense, Wallace's lawyer was unable to provide a factual basis for his proposed irresistible impulse theory during a pretrial hearing where he sought authorization for private forensic testing, prompting the court's expression of astonishment at the degree of unpreparedness in a capital case. He admitted at trial to neglecting to read a statement of a prosecution witness that had been provided before trial.
C
Wallace's lawyer's demeanor was unprofessional and provocative. He objected to the prosecutor's "third grade questions," and accused the court of making gestures indicating boredom or displeasure with the defense. He charged the court reporter *370 with purposely withholding transcripts, and interrupted the prosecutor's lengthy closing argument by asking for a glass of water so that he could stay awake. On redirect examination of his witness, Dr. Bhama, he asked three times if Dr. Bhama was to be paid for his time in court. He then dismissed his own expert witness saying "You're too expensive to keep here."
Those comments illustrate an appalling lack of respect for the court, and a capacity for self-inflicted damage evident throughout the trial.
D
The cumulative effect of the lawyer's ignorance of basic law critical to his client's case, inadequate factual preparation, and unacceptable use of "confusion" as a trial strategy, undermines confidence in the verdict.
Wallace was prejudiced by his lawyer's deficient performance, for there was a reasonable probability that the conviction of first-degree murder was the result of the lawyer's failure to present and to seek an instruction on a mitigating defense, coupled with the cumulative error at trial.
I would reverse Wallace's conviction, and remand for a new trial.
IV
Pickens was convicted of delivery of less than 50 grams of cocaine in a controlled purchase. His defense was alibi. In her opening statement, Pickens' lawyer told the jury that she had an alibi witness. The trial judge refused to permit her to present the alibi witness because she had not filed *371 the required statutory notice.[28] The arresting officers testified at trial that the marked $20 bill was found on Pickens' person when he was arrested.
The Court of Appeals remanded for a Ginther hearing. Pickens lawyer was the sole witness. She testified that she knew of the alibi witness two months before the trial, and directed her investigator to interview and subpoena him.
Pickens failed, however, to establish that the deficient representation created a reasonable probability that the verdict was a result of the failure to produce the alibi witness. When the alibi witness failed to appear at an adjourned Ginther hearing, Pickens waived production of the witness, indicating to the court's satisfaction that he fully understood the consequences. There is no evidence that the alibi witness would have testified favorably.[29] Absent prejudice, and being persuaded that the verdict followed a fundamentally fair trial, I join in affirmance of his conviction.
V
The right of an indigent criminal defendant to the appointment of counsel, as set forth in Recorder's Court Bar Ass'n v Wayne Circuit Court, 443 Mich. 110; 503 NW2d 885 (1993), is statutory. Before Gideon v Wainwright, 372 U.S. 335; 83 S. Ct. 792; 9 L. Ed. 2d 799 (1963), circuit judges appointed assigned counsel in appropriate cases at public expense.
The supervision of the administration of justice in this state is confided to this Court under article 6 of this state's constitution. This Court has broad power and responsibility at every level. Lawyers are admitted to practice, and permitted to continue *372 to practice, under authority conferred by this Court.
Although a statute confers on the trial bench the authority to appoint a lawyer,[30] that power, like all power confided to trial and intermediate appellate court judges, is subject to the supervisory power of this Court.
Ineffective assistance of counsel is a continuing problem in part because, unfortunately, too many lawyers who accept assignments to represent indigents or accept money as retained counsel to represent persons that become involved in the criminal justice system do not, in fact, perform adequately. Neither the trial bench nor the Court of Appeals nor this Court has put in place a meaningful system for removing inadequate lawyers from the rosters of lawyers eligible to represent defendants in criminal cases.[31]
I do not mean to suggest that the problem is readily solvable. The counties are expected to fund indigent defense. The compensation is generally inadequate. It is difficult to raise standards. But nothing meaningful has been done, although many of us have been talking about it for at least twenty-five years of which I am aware.
The problem is further exacerbated by the continuation of the patronage system in Recorder's Court and many other courts. I do not mean to *373 suggest that unqualified lawyers are generally appointed, but rather that far too many unqualified lawyers continue to be appointed.
I find it most difficult to join in a standard for determining ineffective assistance of counsel that places the burden on the defendant often uneducated, without resources, financial or familial to show that omissions and errors of a lawyer, licensed by this Court to accept his retainer[32] or public funds for his defense, in fact prejudiced the outcome.
This Court has failed to provide indigent persons with a realistic opportunity to obtain effective legal representation and advocacy in this Court of their claims, although a commitment was made over four years ago to do so.[33]
NOTES
[1] MCL 768.20(1); MSA 28.1043(1) requires notice of an alibi defense be filed at least ten days before trial.
[2] Unpublished opinion per curiam of the Court of Appeals, issued October 26, 1992 (Docket No. 115477).
[3] Although the record is unclear, it appears that only days earlier a CAT scan and other tests were performed. The record does not indicate who ordered these tests or their results.
[4] In fact, only a few days before the killing, Wallace told several people that his wife was having an affair and that they would all be better off if he killed her.
[5] Wallace told another officer that the victim had sex with her boyfriend in front of their young child.
[6] He diagnosed defendant as suffering from organic brain syndrome and from unconscious substitution or confabulation.
[7] For instance, Kolito testified:
He said his wife once woke him up and accused him of child molesting. He also then he related a story about seeing his estranged wife with a man in a motel. Said his wife had a two bedroom flat and saw them there with each other, and he saw them on three days, the defendant got there at ten o'clock and watched the front for four hours looking through the window. He saw the man sitting at the table. At about two o'clock in the morning he saw the man have sex with his estranged wife. He heard him scream at his daughter. The defendant's daughter slept with him, the defendant, until she was four.
[8] Other prosecution witnesses testified that Wallace acted normally during most of his activities before the shooting. Furthermore, it was explained to the jury that the drug he had taken Serax is an anxiety reducing drug that has a calming effect. Moreover, testimony established that defendant drank alcohol and consumed Serax regularly. The prosecution's expert noted that defendant probably possessed an acquired tolerance to these drugs as opposed to an individual who mixed the drug with alcohol for the first time.
[9] In short, "it is not the prerogative of this Court to change the plain meaning of words in the constitution `as understood by the people who adopted it.'" Regents of Univ of Michigan v Michigan, 395 Mich. 52, 74-75; 235 NW2d 1 (1975), quoting Bond v Ann Arbor School Dist, 383 Mich. 693, 699; 178 NW2d 484 (1970).
[10] The Sixth Amendment to the United States Constitution also mandates that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."
[11] See Strickland, supra at 687-688 ("When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness").
[12] Furthermore,
an analysis focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him. [Lockhart v Fretwell, 506 US ___, ___; 113 S. Ct. 838; 122 L. Ed. 2d 180, 189 (1993).]
[13] People v Dalessandro, 165 Mich. App. 569, 575; 419 NW2d 609 (1988) ("the Garcia two-part test fairly appears to be interwoven with federal law, and the Court did not state that it was basing its decision on separate, adequate, and independent state grounds"); People v Dalton, 155 Mich. App. 591, 602; 400 NW2d 689 (1986) (HARRISON, J., concurring) ("A review of the proceedings of the state constitutional convention of 1961 shows no such indication as to the right to effective assistance of counsel"); People v Hampton, 176 Mich. App. 383, 387-388; 439 NW2d 365 (1989) (GRIFFIN, J., concurring) ("Although several panels of this Court have held that Strickland governs federal constitutional claims while Garcia applies to state claims, this dichotomy is not mandated by the language of the state constitution, Michigan constitutional history, or the holdings in Garcia .... Garcia does not rest upon separate or independent state constitutional grounds. Rather, it is based upon federal case law which has now been overturned").
The Court primarily relied upon Beasley v United States, 491 F2d 687 (CA 6, 1974), a Sixth Amendment case, for the proposition that a defendant did not have effective counsel if his counsel did not perform at least as well as an attorney with ordinary training and skill in the criminal law or he did not conscientiously protect his client's interests. The Court relied upon People v Degraffenreid, 19 Mich. App. 702, 718, n 22; 173 NW2d 317 (1969), which in turn was based upon the Due Process Clause of the Fourteenth Amendment for the proposition that ineffective assistance of counsel occurs when but for counsel's error a defendant would have had a reasonably likely chance of acquittal.
Yet, in Degraffenreid, supra at 716, the Court of Appeals also found that the Due Process Clause would be violated if "but for [attorney error,] the defendant might not have been convicted...." None of these decisions, however, developed their holdings from sources independent of the federal law.
[14] See also Strang v People, 24 Mich. 1, 9-10 (1871) (finding that the admission of inadmissible but unprejudicial testimony may not be the basis of a reversal); People v Hahn, 214 Mich. 419, 427; 183 N.W. 43 (1921) (finding a reversal unwarranted because the multiple alleged trial errors were harmless); People v Horton, 224 Mich. 139, 142; 194 N.W. 486 (1923) (finding that evidence allegedly seized illegally did not warrant reversal).
[15] Chief Justice COOLEY elaborated over a century ago:
And in seeking for its real meaning we must take into consideration the times and circumstances under which the State Constitution was formed the general spirit of the times and the prevailing sentiments among the people. Every constitution has a history of its own which is likely to be more or less peculiar; and unless interpreted in the light of this history, is liable to be made to express purposes which were never within the minds of the people agreeing to it. [People v Harding, 53 Mich. 481, 485; 19 N.W. 155 (1884).]
[16] See, e.g., People v Nash, 418 Mich. 196, 214; 341 NW2d 439 (1983) (opinion of BRICKLEY, J.). Unless a searching analysis of the understandings of the ratifiers and framers, as well as the historical circumstances surrounding the adoption of a provision, reveal otherwise, the Court must refrain from finding (or creating) such rights. See, e.g., Harding, supra at 485; Nash, supra at 214-215 (opinion of BRICKLEY, J.); Sitz, supra at 758-759.
[17] See, e.g., art 1, § 4 ("No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary"); art 1, § 5 ("Every person may freely ... express ... his views"); art 1, § 6 ("Every person has a right to keep and bear arms for the defense of himself and the state"); art 1, § 11 ("The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state"); art 1, § 16 ("cruel or unusual punishment shall not be inflicted"); art 4, § 24 ("No law shall embrace more than one object, which shall be expressed in its title"); art 5, § 19 ("The governor may disapprove any distinct item or items appropriating moneys in any appropriation bill").
[18] See, e.g., People ex rel Drake v Mahaney, 13 Mich. 481, 495-496 (1865) (explaining the extensive history undergirding the Title-Object Clause [now art 4, § 24], which prohibits legislative practices common in the United States Congress); Nash, supra at 209-213 (explaining that art 1, § 11 was intended to permit the introduction of illegally seized narcotics and dangerous weapons in variation with federal law); 1 Official Record, Constitutional Convention 1961, p 478 (comments of Hodges) ("We did broaden [the Michigan parallel to the First Amendment] by adding the word `express,' and I think that to the extent that radio and television can be given freedom, this is done").
[19] As noted, because of its federal foundation, Garcia is bereft of any value for Michigan constitutional analysis.
[20] In People v Gorka, 381 Mich. 515, 521; 164 NW2d 30 (1969), the Court utilized an "`adequate and effective' counsel" standard, but the Court apparently referred to the federal constitution.
[21] Specifically, the court found that defense counsel's decision not to interview and call witnesses to testify did not amount to ineffective assistance of counsel because such testimony would have highlighted the defendant's inconsistent position and the consistency of the victim's allegations to the jury. Id. at 275. The court also found that another allegation of error by counsel was irrelevant because "even assuming that counsel's failure to do so was manifestly unreasonable, the outcome of the case was in no way affected." Id. at 277.
[22] Also, neither is Saferian because that case was decided a decade before, and without the benefit of, Strickland.
[23] The court reasoned that Strickland was "unduly difficult for a defendant to meet," because a defendant would be successful "`only where there is evidence that they should not have been convicted.'" Id. at 310, n 7, quoting Genego, The future of effective assistance of counsel: Performance standards and competent representation, 22 Am Crim L R 181, 199 (1984).
[24] Indeed, Justice MALLETT agrees that we are "free to uphold greater protections pursuant to Const 1963, art 1, §§ 17 and 20, for the citizens of this state if we find a principled basis in the history of our jurisprudence to do so." Post at 347 (emphasis added).
[25] Justice CHRISTIANCY explained:
The question is not whether the constitution ought to have permitted the exercise of this power; but whether, by a fair construction of the language of the instrument, as framed by the convention, and understood and adopted by the people, the power in question has been prohibited. Our province is not to make or modify the constitution, according to our views of justice or expediency, but to ascertain, as far as we are able, the true intent and purpose of the constitution which the people have deemed it just and expedient to adopt. [People v Blodgett, 13 Mich. 127, 149-150 (1865).]
[26] As Justice POTTER explained:
Changing by judicial construction the settled meaning of words aptly used in the Constitution is more than the exercise of legislative power. It wrests private rights from their moorings, lets down constitutional barriers, and alters the foundation of government. [James S Holden Co v Connor, 257 Mich. 580, 600; 241 N.W. 915 (1932).]
[27] See Const 1963, art 12, § 1 (outlining the procedure by which the Legislature proposes, and the electorate may approve, a constitutional amendment); art 12, § 2 (outlining the procedure by which the people may both propose and approve a constitutional amendment); art 12, § 3 (outlining the procedure by which no later than every sixteen years the people may call a constitutional convention to revise the constitution).
[28] In Li, the Court determined that the historical precedent before the adoption of the governmental immunity act did not support a public nuisance exception to that act.
[29] may not disregard the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection. [Sitz, supra at 759.]
[30] Because we find that the Michigan Constitution does not mandate stronger protection than Strickland and that Michigan courts are bound to adhere to the minimum guarantees found in Strickland, we do not determine the exact nature of the Michigan guarantee. We do note, however, that it may be different, even less, than Strickland.
[31] Furthermore, as a constitutional ruling, prior convictions will come under such scrutiny, subjecting past criminal convictions to the new standard.
Similarly, plea bargains would have fallen within the ambit of the standard espoused by the dissent because a defense counsel's failure to formulate a defense, albeit one that would not have had a reasonable probability to affect the outcome of the case, may have led a defendant to accept a plea bargain. Defense counsel may become more reluctant to accept good plea bargains for fear that such decisions will now be subject to attack by a criminal defendant claiming to have had an "otherwise available and likely meritorious defense" even though defense counsel properly understood that it did not have a reasonable probability of affecting the jury's verdict. Post at 341.
Moreover, the inevitable result of such a formulation would be an explosion of civil litigation in which juries would be permitted to award damages to a defendant who by definition has been reliably found guilty simply because defense counsel might have been more effective. That such a perversion of the truth-seeking function of criminal trials was not intended by the Michigan Constitution is beyond question.
[32] Several witnesses testified that defendant acted normally before the shooting, and defendant did not allege any mental illness except at the time of the actual shooting. Also, while defendant had injested a tranquilizer and drank beer the day of the shooting, each activity was not unusual for defendant. Furthermore, defendant brought a gun to the bar and shot his wife in a manner in which the jury could easily determine was premediated.
[33] The jury instruction on diminished capacity provides:
(1) A person who is under the influence of voluntarily consumed [alcohol/(and/or) controlled substances] at the time of the alleged offense is not for that reason alone to be judged legally insane.
(2) However, a person may be mentally ill and intoxicated, with both conditions affecting his actions. It is for you to judge whether, under all of the circumstances, the defendant was mentally ill at the time of the offense, and then to apply the further tests of whether or not the defendant was legally insane. [CJI 7:8:02.]
[34] Wallace also alleges that defense counsel was untruthful, either at the Ginther hearing or during trial, regarding when he obtained and reviewed a crucial prosecution expert's report. At trial he stated that he did not know Kolito's report would be used and had not studied or discussed it with Wallace until the night before trial. However, when confronted with these assertions at the evidentiary hearing, he explained that he received the report and immediately studied it with Wallace eleven days before the trial. He explained that his prior assertions were merely an attempt to "try and lean on the Court" for additional time. In any event, Wallace does not explain how this conduct prejudiced his defense.
[35] The United States Supreme Court in Ake v Oklahoma, 470 U.S. 68, 83; 105 S. Ct. 1087; 84 L. Ed. 2d 53 (1985), specifically left the decision how to implement the right of a defendant gaining access to a competent psychiatrist to the states.
[36] The neurological tests included a CAT scan. The trial judge specifically denied Wallace's request for another CAT scan.
[37] MRE 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. The court may require that underlying facts or data essential to an opinion or inference be in evidence.
MRE 705 provides:
The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
[38] The prosecution's reliance on People v Dobben, 440 Mich. 679, 693-694; 488 NW2d 726 (1992), for the contention that the only limitation on an expert's testimony is that set forth in MCL 768.20a(5); MSA 28.1043(1)(5) is incorrect. In Dobben, the Court stated: "Section 20a makes no reference to any limitation in the testimony of such an expert, other than that `[s]tatements made by the defendant ... shall not be admissible ... on any issues other than ... mental illness or insanity at the time of the alleged offense.'" However, this statement was made to address an entirely different issue than that presented here whether an independent expert may rely on historical evidence in testifying regarding the issue of criminal responsibility, or whether only a government-employed, certified clinician may rely on historical evidence.
[39] The following exchange between the prosecutor, Mr. Kolito, and defense counsel is illustrative:
Q. So then based on all the information that you had did you come to an opinion as to whether or not the defendant was mentally ill on August the 4th of 1986?
A. Yes sir.
Q. What is that opinion?
A. That he was not mentally ill.
Q. Why not?
A. Well, the defendant had functioned at his place of employment that day. The defendant was an electrical inspector. There is no evidence that the defendant was experiencing any systems [sic] of psychosis, any symptoms of delusions ...
[Defense Counsel]: Objection, he doesn't know, he wasn't there, he doesn't know what he was experiencing, whether he was experiencing blackouts or anything and he's testifying to this jury that on August the 4th Shorty Wallace was just fine. Where was he on August the 4th? He wasn't around Shorty Wallace.
It was after this exchange that Kolito read his report, which referenced statements made by others who witnessed Wallace's conduct on the day of the shooting.
[1] Although this test is referred to as the "Garcia test," this Court's opinion in that case did not fully explain or give a rationale for what the exact test for ineffectiveness pursuant to Const 1963, art 1, § 20, should be. Instead, the Court merely explained that the defendant's contention that he was denied a fair trial under either People v Degraffenreid, 19 Mich. App. 702; 173 NW2d 317 (1969), or Beasley v United States, 491 F2d 687, 696 (CA 6, 1974), was unfounded. Garcia at 264-266.
[2] Although, pursuant to Administrative Order No. 1990-6, all Michigan Court of Appeals panels and trial courts were bound by the Strickland test as adopted in the "first out" case, People v Tommolino, 187 Mich. App. 14; 466 NW2d 315 (1991), this Court had yet to definitively state that Strickland is the governing standard.
[3] See Gilles, Effective assistance of counsel: The Sixth Amendment and the fair trial guarantee, 50 U Chi L R 1380 (1983).
[4] Justices LEVIN and MALLETT held that the right against self-incrimination, the right to remain silent, and the right to counsel afforded by Const 1963, art 1, § 17, include being informed by the police of attempted contact in person by retained counsel. Chief Justice CAVANAGH concurred, but would have further required the police to take prompt and diligent steps to inform the suspect of his attorney's attempts to contact him or would render subsequent statements by the suspect inadmissible as taken in derogation of the right to counsel. Justice BRICKLEY concurred in the result, but found lack of a valid waiver on other grounds.
[5] A standard that focuses only on the reliability of the outcome ignores the procedural element of the right to effective assistance, turning the right to effective assistance into a singular issue of harmless error. The right to effective assistance includes a right to have an attorney who is at least minimally competent to assist in presenting the defense.
[6] Similarly, contrary to the majority's suggestion, a "good" plea bargain accepted by a defendant on the sound advice of his attorney would not form the basis of a successful ineffective assistance claim because the first prong of the test would not be satisfied. An attorney who chooses a "good" strategy would meet the competency requirements of the first prong.
[7] The jury instruction on diminished capacity is as follows:
(1) A person who is under the influence of voluntarily consumed [alcohol/(and/or) controlled substances] at the time of the alleged offense is not for that reason alone to be judged legally insane.
(2) However, a person may be mentally ill and intoxicated, with both conditions affecting his actions. It is for you to judge whether, under all of the circumstances, the defendant was mentally ill at the time of the offense, and then to apply the further tests of whether or not the defendant was legally insane. [CJI 7:8:02.]
At the Ginther hearing, Mr. Graziotti explained that because evidence was presented refuting that his client was intoxicated at the time of the shooting, he felt the instruction would be detrimental to his client's case.
[8] This is also true because a necessary component of the diminished capacity defense is that the defendant was mentally ill. The jury rejected such a finding when it rejected the guilty but mentally ill verdict.
[9] I am sympathetic to the defendant's claim that because of attorney Graziotti's inadequacies, "he brought an aura of unprofessionalism that reflected so badly on the Appellant and his defense." However, the defendant has done no more to show prejudice than to make a bare allegation that "because of counsel's serious mistakes, he was substantially prejudiced thereby and but for same may have had a strong likelihood of acquittal." Id.
[1] Strickland v Washington, 446 U.S. 668, 708; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984) (Marshall, J., dissenting). See also United States v Decoster, 199 US App DC 359, 454-457; 624 F2d 196 (1976) (en banc) (Bazelon, J., dissenting).
[2] Ante, pp 319-320.
[3] Ante, pp 312-314.
[4] Wilson v State, 711 P2d 547, 549 (Alas App, 1985). To obtain postconviction relief on the basis of a claim of ineffective assistance of counsel, a defendant must establish that counsel's conduct either generally throughout the trial or in one or more specific instances did not conform to the standard of competence displayed by a person of ordinary training and skill in the criminal law, and that the lack of competency contributed to the conviction. (Citing Risher v State, 523 P2d 421 [Alas, 1974].)
The appellate court declined to rule on the merits of defendant's ineffective assistance challenge, as the trial court failed to articulate a test of prejudice. If, as the defendant claimed, an actual conflict of interest existed, prejudice would be presumed and the conviction reversed. Cuyler v Sullivan, 446 U.S. 335; 100 S. Ct. 1708; 64 L. Ed. 2d 333 (1980).
[5] State v Smith, 712 P2d 496 (Hawaii, 1986). In reversing a conviction on the basis of ineffective assistance of counsel, the Hawaii Supreme Court ruled that a claim of inadequate assistance will be sustained only if defendant can show specific errors or omissions reflecting counsel's lack of skill, judgment or diligence, and that the error or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. Id., p 501.
The court held that defense counsel's direct examination of the defendant eliciting testimony of six prior burglary convictions and his habit of exposing himself in a prosecution for sodomy was outside the range of professional competence. The errors reflected counsel's lack of skill substantially impairing a potentially meritorious defense. Id., p 502.
[6] Commonwealth v White, 409 Mass 266, 272; 565 NE2d 1185 (1991). To prevail on a claim of ineffective assistance of counsel, defense counsel's performance must fall measurably below that which might be expected from an ordinary fallible lawyer, and that the defendant's case was prejudiced by counsel's conduct by a likely deprivation of an otherwise available, substantial ground of defense, citing Commonwealth v Saferian, 366 Mass 89, 96; 315 NE2d 878 (1974).
The Supreme Judicial Court of Massachusetts affirmed the conviction, as the lawyer's failure to call and interview two witnesses was within legitimate trial strategy, and therefore not prejudicial.
[7] In Garcia, this Court adopted the standard for evaluating Sixth Amendment claims of ineffective assistance set forth in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974).
Under Garcia, a defendant's lawyer must perform at least as well as a lawyer with ordinary training and skill in the criminal law, and must conscientiously protect his client's interests, undeflected by conflicting considerations. Prejudice is not presumed once this test is met. A defendant would be entitled to a new trial only if, but for the attorney's error, the defendant would have had a reasonably likely chance of acquittal. People v Degraffenreid, 19 Mich. App. 702; 173 NW2d 317 (1969) was cited.
[8] Williams v Beto, 354 F2d 698 (CA 5, 1963).
[9] Strickland, supra, p 686.
[10] Strickland, supra, p 687.
The two-part Strickland test for ineffective assistance requires that defendant show that counsel's representation was objectively unreasonable, based on the facts and circumstances of a particular case. The defendant must also show that the deficient performance prejudiced the defense. To establish prejudice, defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., pp 689, 694.
[11] Ante, p 330 (opinion of RILEY, J.).
[12] Ante, p 354 (opinion of MALLETT, J.).
[13] Wallace's lawyer testified at the Ginther hearing that he chose not to request an instruction on diminished capacity because it would confuse the jury. He testified that he wanted the jury to find his client insane "so why would I want ... the Judge to read a person who is under the influence of voluntarily consumed alcohol or controlled substance at the time of the alleged offense is not for those reasons alone to be judged legally insane?"
Wallace's lawyer did not understand that a diminished capacity defense allows the jury to reach the issue of insanity, combining the effects of past mental illness/retardation and substance abuse as contributory factors to legal insanity. This corresponds to the findings of Dr. Bhama, and was partially corroborated by the forensic center responsibility examination.
[14] Dr. Bhama saw Wallace both as an outpatient and an inpatient during this period.
[15] During the discussion of jury instructions, the prosecutor observed that, although Wallace's lawyer had submitted instructions concerning a diminished capacity defense, the lawyer had before the trial specifically rejected diminished capacity as a defense. The ensuing discussion illustrates the lawyer's utter confusion, or his all-toolate realization that the evidence supported a defense of diminished capacity.
[16] There was credible testimony that Wallace appeared in control and lucid at the time of the murder. There was evidence of premeditation. Wallace worked full time as an electrical inspector and otherwise conducted his daily affairs in an outwardly normal manner. A neighbor of Wallace's testified that several days before the shooting, Wallace said he would kill his wife to end his marital difficulties. Wallace brought a .357 magnum to the bar where he shot his wife.
Employees and bar patrons testified that Wallace sat with his wife, quietly drinking and talking for some time, before he fired the first shot. Eyewitnesses recounted that Wallace shot his wife a second time as she fell to the floor, and finally fired a third shot into her motionless body beneath a table. The second and third shots were anywhere from one to five minutes apart. Wallace calmly placed his gun on the table and went to the restroom. When he emerged, he submitted to arrest, telling the police that he had shot his wife.
[17] Waters v Zant, 979 F2d 1473 (CA 11, 1992); Evans v Lewis, 855 F2d 631 (CA 9, 1988). Failure to fully investigate cannot be characterized as a trial tactic, and the omission of relevant and material evidence at sentencing seriously undermined confidence in the outcome, requiring reversal.
[18] State v Savage, 120 NJ 594, 622; 577 A2d 455 (1990).
[19] The defendant carried the victim's dismembered torso in a suitcase for days, attempted suicide while hospitalized, and had a history of cocaine use.
[20] Vasquez v State, 830 S.W.2d 948 (Tex Crim App, 1992).
[21] Id. at 950. See also Watrous v State, 842 S.W.2d 792 (Tex App, 1992), in which the court reversed a sexual assault conviction because the attorney failed to request an instruction on a statutory defense.
[22] Mak v Blodgett, 970 F2d 614, 622 (CA 9, 1992), citing Ewing v Williams, 596 F2d 391, 395 (CA 9, 1979) (prejudice may result from the cumulative effect of multiple deficiencies), citing Cooper v Fitzharris, 586 F2d 1325 (CA 9, 1978) (en banc), cert den 440 U.S. 974 (1979).
Habeas corpus relief was granted in Harris v Dugger, 874 F2d 756 (CA 11, 1989), on the basis of cumulative error. Because there was a reasonable probability that the jury would have rejected the death penalty in light of favorable evidence, the defendant was prejudiced by his lawyer's omissions. Accord Horton v Zant, 941 F2d 1449 (CA 11, 1991); Cave v Singletary, 971 F2d 1513 (CA 11, 1992), the failure to present favorable evidence and witnesses at sentencing greatly undermined the jury verdict, establishing prejudice.
[23] At the Ginther hearing, the lawyer repeatedly misstated the rules of evidence. Midtrial, the judge gave the lawyer a book of the Michigan Rules of Evidence after various baseless objections. At the Ginther hearing, the lawyer testified, "Not all objections were made based upon my knowledge or expertise or lack thereof. Lots of times, I was trying to do things to grandstand for the Jury. I was often trying to interrupt and sometimes trying to confuse."
The lawyer also testified that "[a]fter twenty years in this business, I can tell you something, I am more confused now than I was the day I got out of law school, okay."
Errors of omission included the lawyer's failure to cross-examine the forensic psychologist on his conclusion that Wallace did not suffer from acute mental organic disorder, a conclusion that contradicted Wallace's expert testimony. The lawyer failed to provide his own expert with police reports in preparation for trial.
[24] I would ask the Court that it instruct the Jury that part of Second Degree Murder includes plan, purpose, premeditation.
[The Court]: That's not the law, Mr. [Wallace's lawyer].
[Lawyer]: I think that instruction should be given.
[The Court]: That's not the law.
[Lawyer]: What is the law?
[The Court explains the elements.]
[Lawyer]: Requests malice aforethought instruction for second degree murder Court refuses, [Lawyer] want[s] objection on the record.
[25] MCR 2.003(C)(3).
[26] He argued, in response to the prosecutor's hearsay objection, "[i]f two men are both in the room and I'm asking him to tell the conversation they had at that time...."
[27] Ten-year-old incidents of work absenteeism, for example.
[28] MCL 768.20(1); MSA 28.1043(1).
[29] Compare People v Pearson, 404 Mich. 698; 273 NW2d 856 (1979).
[30] MCL 775.16; MSA 28.1253.
[31] As Anthony Lewis observed after the Gideon decision:
It will be an enormous social task to bring to life the dream of Gideon v Wainwright the dream of a vast, diverse country in which every man charged with crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense. [Gideon's Trumpet, p 205.]
[32] Wallace's lawyer was retained.
[33] Administrative Order No. 1990-2, ¶ 2(C)(3)(b); Mich Ct R, pp A 1-42 to A 1-43. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2415639/ | 37 F. Supp. 2d 495 (1999)
Carver Dan PEAVY, et al., Plaintiffs,
v.
Charles James HARMAN, Sr., et al., Defendants.
Carver Dan Peavy, et al., Plaintiffs,
v.
WFAA-TV, Inc., et al., Defendants.
Nos. Civ.A. 3:96CV1506-R, 3:96-CV-2945-R.
United States District Court, N.D. Texas, Dallas Division.
February 18, 1999.
*496 *497 *498 *499 *500 *501 Michael J. Quilling, Quilling Selander Cummiskey Clutts & Lownds, Dallas, Texas, for plaintiffs.
Frank H. Jackson, Law Office of Frank Jackson, Dallas, Texas, for defendants.
Thomas S. Leatherbury, William D. Sims, Vinson & Elkins, Dallas, TX, for WFAA-TV and Robert Riggs.
ORDER
BUCHMEYER, Chief Judge.
This Court has made an independent review of the Findings and Recommendation ("Findings and Recommendation") of the United States Magistrate Judge, rendered on October 15, 1998, as well as the Objections to the Findings and Recommendation, and the relevant portions of pleadings, files, and records in this case. The Court concludes that the Findings and Recommendation of the Magistrate Judge are correct and they are adopted as the Findings and Conclusions of this Court.
In Civil Action No. 3:96-CV-1506-R, the parties' motions for summary judgment are GRANTED IN PART AND DENIED IN PART. Defendants' are entitled to judgment as a matter of law on Plaintiffs' common law claims for public disclosure of private facts, intentional infliction of emotional distress, tortious interference with contractual relations, and civil conspiracy. Plaintiffs are entitled to judgment as a matter of law on their claims against the Harmans for violations of 18 U.S.C. § 2510 ("Title III"), the Texas Wiretap Act, Tex. Civ.Prac. & Rem.Code Ann. § 123.001, and for invasion of privacy by intrusion. This action will proceed to trial on the issue of damages and whether the Defendants intentionally disclosed the contents of the "Race Tape" in violation of Title III and the Texas Wiretap Act.
In Civil Action No. 3:96-CV-2945-R, Defendants' Motion for Summary Judgment is GRANTED, and Plaintiffs' Motion for Summary Judgment is DENIED. All claims against the Defendants are dismissed with prejudice.
It is so ORDERED.
FINAL JUDGMENT
For the reasons stated in the Findings and Recommendation of the United States Magistrate Judge and this Court's Order adopting the Findings and Recommendation as the Findings and Conclusions of this Court, and pursuant to Rule 58 of the Federal Rules of Civil Procedure,
IT IS HEREBY ORDERED that judgment be entered in favor of Defendants. All claims of Plaintiffs against Defendants are hereby DISMISSED WITH PREJUDICE. Costs are awarded to Defendants.
It is so ORDERED.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
KAPLAN, United States Magistrate Judge.
These cases have been consolidated for pretrial purposes and are before the Court *502 on cross-motions for summary judgment. The motions have been referred to United States Magistrate Judge Jeff Kaplan for recommendation pursuant to 28 U.S.C. § 636(b).
I.
BACKGROUND
This case started with the breakdown of common civility between neighbors. It led to a public scandal that resulted in a highly publicized criminal trial and spawned at least thirteen different civil lawsuits.[1] The facts are relatively simple and straightforward. Succinctly stated, plaintiffs got caught with their hands in the "cookie jar" and are upset that the media exposed their misdeeds. However, this case also presents a unique opportunity to further define the parameters of the federal wiretap statute. This legal issue is at the heart of the pending summary judgment motions.
The saga began in December 1994 when Charles Harman purchased a police scanner to monitor criminal activity in his neighborhood. The first time Harman used the scanner he intercepted a signal from a cordless telephone being used by his next-door neighbor, Dan Peavy. Harman overheard Peavy talking to another neighbor about filing a class-action lawsuit against him and his wife.[2] This piqued Harman's interest and he continued to monitor Peavy's phone calls. Later that same day, Harman heard Peavy tell an unidentified party "how much money [he] was making off the insurance policies at DISD." (WFAA Exh. M at 168). Harman thought this conversation was significant since Peavy was a trustee of the Dallas Independent School District.
Harman consulted the scanner manual to determine whether it was legal to tape the intercepted phone calls. The manual suggested that any such inquiries be directed to local law enforcement authorities. Harman decided to contact the Dallas County District Attorney's office. He spoke to Assistant District Attorney Bill Geyer and asked if it was legal to listen to the cordless telephone conversations. Geyer responded, "Absolutely." (C. Harman Aff. ¶ 8). Harman then inquired whether he could record the telephone calls. Geyer said, "Go ahead. Anything over the air is free." (C. Harman Aff. ¶ 8). Based on these assurances, Harman began to make the infamous "Peavy tapes."
Peavy continued to plot with his neighbors against Harman. On one occasion, Peavy offered to put up "$10,000 to make sure [a lawsuit] was filed." (C. Harman Aff. ¶ 9). Harman perceived this statement as a threat against his family. He reported this conversation to Geyer who referred him to the Dallas Police Department. Harman spoke with several police *503 officers but was not satisfied with their response. He then called District Attorney John Vance. Harman told Vance about the threats against his family and possible improprieties related to DISD insurance. Vance agreed to meet with Harman after the first of the year.[3] Until then, he instructed Harman to "keep taping." (C. Harman Aff. ¶ 16). Harman believed that he was getting the "run around" from the authorities. His frustrations eventually led him to contact the media.
Harman called WFAA-TV on December 8, 1994. He spoke to P.J. Ward, a field producer and former director of a consumer hot-line known as "Contact 8." Harman said that he had information concerning possible corruption of an unnamed public official. Ward questioned Harman about his allegations and determined that the official was Dan Peavy.[4] The information was passed on to senior reporter Robert Riggs for further investigation. Riggs called Harman later that day. Harman said he had proof that Peavy had threatened to harm him and was involved in an insurance kickback scheme. However, he only wanted to discuss these matters in person at his home.
Riggs met with Harman and his wife on December 9, 1994. Harman played portions of a tape recorded conversation between Peavy and another party wherein they discussed a plan to split commissions on cancer insurance sold to Mary Kay Cosmetics. Riggs was stunned to hear these remarks from a public official. Harman indicated that he planned to record future telephone calls and asked Riggs if he wanted copies of the tapes. Riggs said that he did. However, he instructed Harman to leave the recorder running throughout the entire conversation and not to edit the tapes so their authenticity could not be questioned. Riggs also asked Harman whether it was legal to record these conversations. Harman assured him that his actions had been approved by the Dallas County District Attorney and the Dallas Police Department.
Riggs returned to the television station and played portions of the tape for Ward and News Director John Miller. All agreed that there was credible evidence of public corruption that should be investigated. However, they first contacted their attorney to determine whether it was legal to use the tape recordings. Paul Walter told Miller that he could accept and broadcast the tapes. This advice was confirmed in a written legal memorandum dated January 4, 1995.
Thereafter, Harman provided WFAA with 18 tapes containing 188 telephone conversations between Peavy and others. Ward listened to the tapes, took notes, and attempted to transcribe the conversations. However, some of the tapes were of poor quality and difficult to understand. Ward selected relevant portions of the tapes and had them transcribed by a professional court reporter. Copies of the transcripts were furnished to Riggs, Miller, and Watler in February 1995.
Several weeks later, Riggs was informed by a law enforcement source about a recent amendment to the federal wiretap statute. Riggs contacted Watler to determine whether the interception of cordless telephone calls was prohibited under the new law. Walter researched the issue and learned that an October 1994 amendment made it unlawful to intercept the radio portion of a cordless telephone call. He immediately advised WFAA not to accept any additional tapes from Harman, not to broadcast the tapes already in its possession, and not to confront individuals about *504 conversations on the tapes. Riggs returned the original tapes to Harman on or about March 1, 1995. Copies of the tapes and all related documents were delivered to Walter for safekeeping.
Harman also learned that it was illegal to tape these telephone conversations. FBI Agent Mark Chapman met with Harman on March 14, 1995 and showed him a copy of the new law. Harman mistakenly believed that he could still listen to the phone calls as long as he did not tell law enforcement officials what he heard. Nevertheless, Harman recorded at least one other conversation. He pled guilty to federal wiretap violations and paid a $5,000 fine in connection with this recording.
Meanwhile, WFAA continued to investigate Peavy. Riggs learned that Peavy had been appointed by the president of the school board to solicit new bids on group term life and disability insurance for DISD employees. Peavy designated Eugene Oliver as the exclusive insurance agent to obtain these bids. The contracts were ultimately awarded to two companies represented by Oliver. Thereafter, Oliver split his commissions with Peavy and several others. Riggs also uncovered a similar arrangement between Peavy and Oliver involving a cancer insurance policy that Oliver was negotiating with Mary Kay Cosmetics.
The relationship between Peavy and Oliver was the subject of a three-part series broadcast by WFAA in the summer of 1995. Riggs did not mention or play any of the tapes he received from Harman during the broadcasts. On July 31, 1995, DISD Superintendent Chad Woolery announced an investigation into the school district's insurance program. Peavy was ultimately stripped of his authority over insurance procurement, and DISD stopped paying agent commissions on insurance contracts. The FBI conducted a parallel criminal investigation during the same time period. As a result of this investigation, Peavy and Oliver were indicted on more than forty counts of official bribery, conspiracy, and income tax evasion. They were eventually acquitted of all charges.
On September 28, 1995, audiotapes of Peavy's telephone conversations were anonymously distributed to at least three DISD board members. In those conversations, Peavy used extremely offensive racial epithets, profanity, and derogatory remarks to describe minority students and school district personnel.[5] A written transcript of the tape was prepared and read into the record at a regularly scheduled meeting of the Dallas school board. Peavy resigned from the board a short time later.
The Peavys and Olivers have now filed three separate lawsuits against the Harmans, WFAA, and Robert Riggs.[6] Plaintiffs allege that defendants intercepted, used, and disclosed their private telephone conversations in violation of the federal and state wiretap statutes. Plaintiffs also assert common law claims for invasion of privacy, intentional infliction of emotional distress, tortious interference with contractual relations, and civil conspiracy. Defendants have answered and raised several affirmative defenses. All parties move for summary judgment on their claims and defenses. The legal issues have been fully briefed by the parties and this matter is ripe for determination.
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when there is no genuine issue as to any material *505 fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 506 U.S. 845, 113 S. Ct. 136, 121 L. Ed. 2d 89 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir.1991).
This case is before the Court on cross-motions for summary judgment.[7] Consequently, each party has the burden of producing evidence to support its motion. Dutmer v. City of San Antonio, 937 F. Supp. 587, 589-90 (W.D.Tex.1996). The movant has the initial burden of showing the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). Either party may satisfy its evidentiary burden by tendering depositions, affidavits, and other competent summary judgment evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S. Ct. 82, 121 L. Ed. 2d 46 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir.1993). However, conclusory statements and testimony based on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
III.
TITLE III HISTORICAL OVERVIEW
The resolution of this case depends largely on the interpretation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510, et seq. ("Title III").[8] Title III imposes criminal and civil liability upon any person who:
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
* * * * * *
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; [or]
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or *506 electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection...
18 U.S.C. § 2511(1). The statute also provides for the suppression of any evidence obtained by use of an illegal wiretap:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
Id. § 2515; see also id. § 2518(10)(a)(i).
Title III was intended to broadly ban the use of wiretaps and any evidence derived therefrom. The decision to create such extensive remedies can be traced to the historical shortcomings of the federal wiretap laws. Before the enactment of Title III, wiretapping was prohibited by the Federal Communications Act of 1934, 47 U.S.C. § 605. However, the statute applied only to federal law enforcement agents. Private parties were free to employ wiretaps with impunity. See Note, Should "Clean Hands" Protect the Government Against § 2515 Suppression Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968?, 53 WASH. & LEE.L.REV. 1473, 1476 & nn. 13-15 (1996), citing 1 J. GARR, THE LAW OF ELECTRONIC SURVEILLANCE § 2.1 (2d ed.1986). In 1967, the Supreme Court addressed the constitutional implications of wiretap activities when it held that the use of electronic surveillance by law enforcement officials could violate the constitutional right of privacy under the Fourth Amendment.[9]Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967).
Title III was enacted to correct deficiencies in the existing law and address the concerns expressed in Berger and Katz. The statute has two purposes: (1) to protect the privacy of wire and oral communications; and (2) to delineate on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2153. The legislative history clearly indicates that Congress intended a broad ban on the use of electronic surveillance to adequately protect privacy interests:
It is not enough, however, just to prohibit the unjustifiable interception, disclosure, or use of any wire or oral communications.... All too often the invasion of privacy itself will go unknown. Only by striking at all aspects of the problem can privacy be adequately protected. The prohibition, too, must be enforced with all appropriate sanctions. Criminal penalties have their part to play. But other remedies must be afforded the victim of an unlawful invasion of privacy. Provision must be made for civil recourse for damages.
Id. at 2156. At the same time, Title III specifically delineates a narrow set of circumstances under which law enforcement authorities can obtain valid wiretaps and use wiretap information. See 18 U.S.C. §§ 2516-2519.
Title III originally covered only wire and oral communications. However, the rapidly growing number of non-wire technologies *507 such as e-mail, cellular phones, paging devices, and computer-to-computer data transmissions eventually rendered the statute "hopelessly out of date." S.Rep. No. 541, 99th Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 3555, 3556, 3562-65. Congress responded with the Electronic Communications Privacy Act of 1986. However, this legislation specifically exempted "the radio portion of a cordless telephone communication transmitted between the cordless handset and the base unit" from the protections of Title III. Id. at 3566, 3568. Congress reasoned that "[b]ecause communications made on some cordless telephones can be intercepted easily with readily available technologies, such as an AM radio, it would be inappropriate to make the interception of such a communication a criminal offense." Id. at 3566.
Congress revisited the issue in 1994. It found that "`[t]he cordless phone, far from being a novelty item used only at `poolside,' has become ubiquitous ... More and more communications are being carried out by people [using cordless phones] in private, in their homes and offices, with an expectation that such calls are just like any other phone call.'" H.Rep. No. 827, 103d Cong., 2d Sess., reprinted in 1994 U.S.C.C.A.N. 3489, 3497. Accordingly, Title III was amended to bring cordless telephones within the protections of the statute. Id. at 3498, 3510. This amendment became effective on October 25, 1994, just five weeks before Harman purchased his police scanner and began to record Peavy's telephone calls.
IV.
EVIDENTIARY ISSUES
Plaintiffs have filed a motion to suppress most of the summary judgment evidence submitted by defendants. They argue that this evidence was obtained in violation of the federal wiretap statute and must be excluded under 18 U.S.C. § 2515. Each party also has objected to portions of various affidavits and depositions excerpts. The Court will address these evidentiary issues at the outset.
A. Motion to Suppress
An aggrieved person may file a motion to suppress the contents of a wire or oral communication intercepted in violation of Title III and any evidence derived therefrom. See 18 U.S.C. §§ 2515 & 2518(10)(a). An "aggrieved person" is one who was a party to an intercepted communication or against whom the interception was directed. Id. § 2510(11); United States v. Scasino, 513 F.2d 47, 49 (5th Cir.1975). The "contents" of a communication subject to suppression "include any information concerning the substance, purport, or meaning of" the communication. 18 U.S.C. § 2510(8).
Plaintiffs clearly have standing to file a motion to suppress. However, their attempt to preclude any use of the tapes in this summary judgment proceeding "puts the cart before the horse."[10] The Court must first find a Title III violation before the exclusionary rule is applicable. See id. § 2518(10)(a)(i).
Moreover, both parties must rely on the tapes to prove their claims and affirmative defenses. Plaintiffs cannot establish a cause of action under the federal wiretap statute unless they compare the contents of the tapes with the contents of any alleged uses or disclosures.[11] The media defendants need the tapes to prove that the issues discussed therein involve matters of public significance, a key element of their First Amendment defense. Finally, *508 the necessity defense raised by Harman directly implicates the contents of the tapes. The Court concludes that defendants may use the tapes to defend themselves against the claims made the basis of this suit. See McQuade v. Michael Gassner Mechanical & Electrical Contractors, Inc., 587 F. Supp. 1183, 1190-91 (D.Conn. 1984) ("Section 2515 was no more designed to keep defendants in lawsuits brought under § 2520 from defending the alleged violations of § 2511 than it was to keep the [g]overnment from prosecuting violators under § 2511.").
An "adjudicatory exception" to Title III is not without precedent. It is well settled that the government may use and disclose illegally intercepted information to investigate and prosecute a criminal defendant charged with violating the wiretap laws. See Chandler v. United States Army, 125 F.3d 1296, 1302 n. 2 (9th Cir.1997); Forsyth v. Barr, 19 F.3d 1527, 1544 (5th Cir.), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L. Ed. 2d 127 (1994); United States v. Underhill, 813 F.2d 105, 112 (6th Cir.), cert. denied, 482 U.S. 906, 107 S. Ct. 2484, 96 L. Ed. 2d 376, and cert. denied, 483 U.S. 1022, 107 S. Ct. 3268, 97 L. Ed. 2d 766, and cert. denied, 484 U.S. 846, 108 S. Ct. 141, 98 L. Ed. 2d 98, and cert, denied, 484 U.S. 821, 108 S. Ct. 81, 98 L. Ed. 2d 43 (1987); United States v. Liddy, 354 F. Supp. 217, 221 (D.D.C.1973), aff'd, 509 F.2d 428 (D.C.Cir. 1974), cert. denied, 420 U.S. 911, 95 S. Ct. 833, 42 L. Ed. 2d 842 (1975). Other federal courts have extended this exception to civil cases. Williams v. Poulos, 11 F.3d 271, 286 (1st Cir.1993); McQuade, 587 F.Supp. at 1188. This Court now follows suit. The motion to suppress should be denied.
B. Objections
The parties also raise numerous objections to each other's summary judgment evidence.[12] Much of this evidence is unnecessary to the disposition of the pending motions and will not be considered. This renders most of the objections moot. However, the Court has found it necessary to rely on certain portions of the affidavits and deposition testimony of Charles Harman, Wilma Harman, Robert Riggs, P.J. Ward, and Paul Watler. (C. Harman Aff. ¶¶ 8-10, 12, 13, 16, 19, 25, 27, 32; C. Harman Dep. at pp. 62-63, 73, 82, 107, 129, 168-76, 184; W. Harman Aff. ¶¶ 5-7, 9, 10, 13, 15, 17; W. Harman Dep. at pp. 45, 49, 56; WFAA Exh. D ¶¶ 5, 6, 7-10, 13, 24, 39, 40; WFAA Exh. E ¶¶ 7, 9, 17, 18; WFAA Exh. F ¶¶ 6, 24). Plaintiffs object to this evidence on hearsay grounds. The Court finds that the statements go to the state of mind of the defendants and thus fall within a well-recognized exception to the hearsay rule. FED.R.EVID. 803(3); see also United States v. Williams, 993 F.2d 451, 457 (5th Cir.1993). Accordingly, these objections should be overruled.
V.
LIABILITY UNDER TITLE III
Plaintiffs allege that the Harmans intercepted, used, and disclosed their private telephone conversations in violation of Title III. They further contend that the media defendants illegally procured the interceptions and used and disclosed the contents of the tapes. All defendants argue that they lacked the requisite intent to violate the statute. Moreover, the media defendants deny any use or disclosure of the communications. The Court will consider these arguments in turn.
A. Intent
Title III prohibits the intentional interception of wire, oral, or electronic communications. 18 U.S.C. § 2511(1)(a). It also prohibits the intentional use or disclosure of such communications if the defendant knows or has reason to know that the communication was intercepted in violation of the statute. Id. § 2511(c) & (d). Defendants argue that all their actions were informed by the opinions of law enforcement *509 authorities or the advice of counsel. They reason that this negates any intent to violate the law.
The federal wiretap statute contains two different mental state requirements depending on the type of violation alleged. The Court will examine each one separately.
1.
Title III imposes liability upon any person who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). The Harmans contend that this subsection requires proof of a specific intent to violate the law. Their argument goes something like this. Title III creates a civil remedy for the violation of a criminal statute. As a result, plaintiffs should be required to prove criminal intent in order to establish their cause of action. Mens rea, or "evil mind," is an essential part of criminal intent. It therefore follows that good faith reliance on the advice of law enforcement officials negates such intent.
The premise of this argument is fundamentally flawed. The mere fact that Title III provides a civil remedy for the violation of a criminal statute does not mean that a defendant is entitled to criminal protections. Congress may impose both criminal and civil liability for the same conduct. United States v. Ward, 448 U.S. 242, 250, 100 S. Ct. 2636, 2642, 65 L. Ed. 2d 742 (1980); Helvering v. Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 633, 82 L. Ed. 917 (1938). Whether a particular penalty is civil or criminal is a matter of statutory construction and involves a twopart test. The first question is whether Congress expressly or implicitly denominated the penalty as civil or criminal. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364, 104 S. Ct. 1099, 1106, 79 L. Ed. 2d 361, 368 (1984); Ward, 100 S.Ct. at 2641. If Congress intended to establish a civil penalty, the Court must then determine whether "the statutory scheme [is] so punitive either in purpose or effect as to negate that intention." Ward, 100 S.Ct. at 2641.
The first prong of the test is easily satisfied. Title III contains a remedial provision that expressly authorizes the recovery of civil damages. 18 U.S.C. § 2520. However, this does not end the inquiry. The Court must still determine whether the civil damages provision creates a criminal punishment despite the expressed intentions of Congress. In making this determination, the Court must consider whether the civil penalty: (1) involves an affirmative disability or restraint; (2) has historically been regarded as punishment; (3) requires proof of scienter; (4) promotes the traditional aims of punishment; (5) applies to behavior that is already a crime; (6) is rationally related to an alternative purpose; and (7) is excessive in relation to the alternative purpose assigned. See Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 493, 139 L. Ed. 2d 450 (1997), citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68, 9 L. Ed. 2d 644 (1963). "Only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Ward, 100 S.Ct. at 2641-42.
Consideration of these factors compels the conclusion that the remedial aspects of Title III do not constitute a criminal penalty. The first two factors weigh heavily in favor of this result. The civil damages provision does not involve an "affirmative restraint" such as imprisonment. See Grossfeld v. Commodity Futures Trading Commission, 137 F.3d 1300, 1303 (11th Cir.1998). Instead, it provides for monetary damages. This type of relief has not historically been regarded as punishment. Hudson, 118 S.Ct. at 496. The third factor whether scienter is an element of a civil violation begs the question and cannot be considered. The fourth factor requires an assessment of whether the *510 civil penalty promotes the traditional aims of criminal punishment. The primary goal of the civil statute is to compensate victims of illegal wiretap activities. Although the threat of a large damage award may also promote deterrence, this is not outcome determinative. Id. The sixth and seventh factors implicate any alternative purpose for the law. Title III was intended to broadly protect the right to privacy. 1968 U.S.C.C.A.N. at 2156. Penalizing those who intrude on this right is rationally related to a legitimate non-punitive purpose. Moreover, the civil penalty is limited to actual damages sustained by the victim or statutory damages based on the duration of the violation. 18 U.S.C. § 2520(b) & (c)(2). The remedial provision of Title III is not excessive in relation to the alternative purpose of the statute. See Grossfeld, 137 F.3d at 1303 & n. 7 (penalty provision allowing agency to tie amount of penalty to gravity of violation not excessive on its face). The Court recognizes that the civil statute applies to behavior that is already a crime. However, this fact alone is insufficient to transform an expressly civil penalty into a criminal sanction. Hudson, 118 S.Ct. at 496; see also Ward, 100 S.Ct. at 2641-42.
Title III does nothing more than create a tort-like remedy for the violation of a criminal statute. Intentional torts typically require proof that the actor desires the consequences of his act or reasonably believes that such consequences are likely to result from his conduct. RESTATEMENT (SECOND) OF TORTS § 8A (1965). Whether the Harmans knew their actions were illegal is irrelevant.
The Court would reach the same conclusion even if criminal intent were an essential element of a civil action under Title III. Criminal intent can be either specific or general. Only a specific intent crime requires proof of an intent to violate the law. A general intent crime merely requires proof of intent to engage in conduct that violates the law, knowing that the consequences are substantially certain to result. See United States v. Reese, 2 F.3d 870, 880-81 (9th Cir.1993), cert. denied, 510 U.S. 1094, 114 S. Ct. 928, 127 L. Ed. 2d 220 (1994), citing Screws v. United States, 325 U.S. 91, 96, 104, 65 S. Ct. 1031, 1033, 1037, 89 L. Ed. 1495 (1945). The issue thus becomes whether a violation of Title III is a specific or general intent crime.
The Court concludes that a criminal violation of the federal wiretap statute only requires proof of general intent. Title III prohibits the "intentional" interception of protected communications. 18 U.S.C. § 2511(1)(a). Use of the term "intent" in a criminal statute is usually indicative of a general intent crime. See, e.g. United States v. Baker, 807 F.2d 427, 428-29 (5th Cir.1986) (criminal statute that requires act to be committed "intentionally" and "knowingly" does not require proof that defendant knew his action violated the law). By contrast, use of the term "willful" to describe a requisite mental state requires proof of specific intent. See Screws, 65 S.Ct. at 1037; see also United States v. Davis, 132 F.3d 1092, 1094 (5th Cir.1998) (approving jury instruction defining "willfully" as meaning "that the act was committed voluntarily and purposely with the specific intent to do something the law forbids; that is to say, with bad purpose whether to disobey or disregard the law.").
Moreover, the law presumes that criminal statutes require only general intent "[i]n the absence of an explicit statement that a crime requires specific intent." United States v. Hicks, 980 F.2d 963, 974 (5th Cir.1992), cert. denied, 507 U.S. 998, 113 S. Ct. 1618, 123 L. Ed. 2d 178, and cert. denied, 508 U.S. 941, 113 S. Ct. 2417, 124 L. Ed. 2d 640 (1993). This presumption is particularly relevant in light of a 1986 amendment to the federal wiretap statute. Section 2511(1) originally required proof of a "willful" violation. However, Congress amended the statute to prohibit the "intentional" interception of a wire, oral, or electronic *511 communications. See 18 U.S.C. § 2511(1). The legislative history indicates that this was done "to underscore that inadvertent interceptions are not crimes." 1986 U.S.C.C.A.N. at 3577. Subsequent judicial decisions make it clear that "intentional" under Title III means simply "not accidental." See, e.g., Thompson v. Dulaney, 970 F.2d 744, 748 (10th Cir.1992); Ali v. Douglas Cable Communications, 929 F. Supp. 1362, 1376 (D.Kan. 1996). See also United States v. Savage, 564 F.2d 728, 732 (5th Cir.1977) (Title III did not cover contents of telephone call inadvertently intercepted by switchboard operator).
The summary judgment evidence conclusively establishes that the Harmans acted consciously, as opposed to accidentally, to bring about the consequences of their actions. They used a police scanner to intercept more than 188 private telephone conversations between Dan Peavy and others over a four month period. Only the first interception was truly inadvertent. The Court concludes that Harmans "intentionally" violated section 2511(1)(a), notwithstanding the assurances of law enforcement officials that their conduct was legal.
2.
Title III also prohibits the intentional "use" or "disclosure" of the contents of intercepted communications. 18 U.S.C. § 2511(1)(c) & (d). This implicates a slightly higher state of mind requirement. In order to establish a violation under these subsections, plaintiffs must prove both intentional conduct and that defendants knew or had reason to know that the underlying interception was illegal. See Forsyth, 19 F.3d at 1538. Defendants argue they did not know or have reason to believe that the interceptions were illegal because they relied in good faith on the advice of law enforcement officials or legal counsel. At least one federal district court has recognized such a defense under the use and disclosure prongs of the wiretap statute. See Kratz v. Kratz, 477 F. Supp. 463, 483 (E.D.Pa.1979).[13]
This argument has some appeal. However, the Fifth Circuit implicitly rejected a good faith defense in Forsyth. The court noted that the knowledge requirement was satisfied if a defendant was aware of "sufficient facts concerning the circumstances of the interception such that he could, with presumed knowledge of the law, determine that the interception was prohibited in light of [Title III]." Forsyth, 19 F.3d at 1538 n. 21, quoting Thompson, 970 F.2d at 749 (emphasis added). Under this standard, plaintiffs are not required to prove that defendants had actual knowledge that their conduct was illegal. It is undisputed that all defendants knew: (1) the calls were coming from a cordless telephone; and (2) the conversations were being intercepted without the knowledge or consent of the participants. This makes the "use" or "disclosure" of those communications illegal under Title III.[14]
*512 B. Interception and Procurement
Plaintiffs allege that the Harmans intercepted their private telephone conversations and the media defendants procured the interceptions.[15]See 18 U.S.C. § 2511(1)(a). Title III defines "interception" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." Id. § 2510(4). Charles Harman listened to private telephone conversations between Dan Peavy and others on his police scanner. Most of these conversations were recorded on audio tape. This clearly constitutes an interception under Title III.
The statute does not define the term "procure." Plaintiffs submit that one "procures" an interception when he "in some sort associate[s] himself with the venture, ... participate[s] in it as in something that he wishes to bring about, [and] ... seek[s] by his action to make it succeed." Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S. Ct. 766, 770, 93 L. Ed. 919 (1949). This is the definition cited in the legislative history of the original wiretap statute. 1968 U.S.C.C.A.N. at 2181; see also Kratz, 477 F.Supp. at 476 n. 30. Defendants suggest that "procure" means to "actively bringing about, causing or instigating something to be done." Flowers v. Tandy Corp., 773 F.2d 585, 590 (4th Cir.1985). Black's Law Dictionary contains a similar definition. BLACK'S LAW DICTIONARY 1208 (6th ed. 1990) ("To persuade, induce, prevail upon, or cause a person to do something.... Procure connotes action and means to cause, acquire, gain, get, obtain, bring about, cause to be done."); see also Flowers, 773 F.2d at 590.
Despite superficial differences, both these definitions require some active participation on the part of the defendant. Other federal courts have interpreted the procurement prong of the statute "to ensnare not only the operative conducting an illegal surveillance but the [person] who hired him as well." United States v. Jones, 542 F.2d 661, 670 n. 17 (6th Cir. 1976); see also Jacobson v. Rose, 592 F.2d 515, 517-18, 524 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S. Ct. 2861, 61 L. Ed. 2d 298 (1979) (prosecutor who obtained illegal wiretap order held liable for procurement); Kratz, 477 F.Supp. at 466 & n. 30 (attorney actively participated in interception by telling his client to leave the wiretap in place to obtain further evidence). Thus, the mere fact that the media defendants may have associated with the Harmans and accepted tapes from them is not sufficient to constitute an illegal procurement under Title III.
Plaintiffs argue that the media defendants crossed the line into active participation by encouraging the Harmans to continue taping and showing them how to do it "better." However, the summary judgment evidence does not support this conclusion. Robert Riggs testified:
A: [Charles Harman] said that he was going to be recording and wanted to know if we wanted tapes. He had he had explained in the lengthy discussion that we'd had with him before that he had contacted the police department, that he had discussed it with the district attorney's office and that they had advised him that it was legal to record and that he was going to be taping and we were we were welcome to the tapes. And I said, `Certainly, I would like to have copies.'
Q: Okay. Did you tell him anything about how to record?
A: Yes.
Q: What did you tell him?
A: I asked him not to edit conversations, that considering the serious nature of what he said he had heard before and what we heard on the tapes, don't edit the tapes. We don't we do not *513 want an edited version or clips of conversations, that we want a full and complete record of the conversation so that no one could challenge the authenticity of the tape.
* * * * * *
A: Well, Mr. Harman asked us if we wanted wanted copies of the tapes. He indicated that he was going to be taping, that he was extremely concerned for his safety, that his wife was concerned for their safety
Q: Right.
A: and said, `You're welcome to have copies, I'll make you copies.
(Plf. Exh. H at 184-85, 255). No reasonable jury could find that this constitutes evidence of procurement. The Harmans clearly told Riggs that they intended to keep taping. There is no evidence that they would have abandoned this venture had Riggs not convinced them to continue. Cf. Kratz, 477 F.Supp. at 476 n. 30. In fact, Wilma Harman confirmed that Riggs did not encourage them:
Q: And [Riggs] talked to you about what you had heard and other conversations, I take it?
A: Right.
Q: Did he request that you do anything thereafter?
A: No.
Q: Did you tell him, `Hey, we're going to keep listening; we're going to keep recording'?
A: I think we told him yeah, we knew we would listen and that we would give him any tapes that we got.
(Plf. Exh. B at 22).
Riggs did tell the Harmans not to turn their tape recorder on and off in the middle of conversations. (Plf. Exh. A at 103). However, this does not constitute evidence of procurement. Riggs made this suggestion to protect the integrity of the tape recordings. He was concerned that someone might question the authenticity of the tapes if portions of conversations were spliced together. Given that the Harmans had already told Riggs they intended to keep taping, his suggestion cannot reasonably be interpreted as active participation in the venture. The media defendants are not liable under section 2511(1)(a) as a matter of law.
C. Use
Title III also prohibits the intentional use of the contents of illegally intercepted communications. 18 U.S.C. § 2511(1)(d). The term "use" is not defined in the statute or legislative history. Black's Law Dictionary defines "use" as "to employ; to avail oneself of; to utilize, to carry out a purpose of action by means of; to put into action or service, especially to attain an end." BLACK'S LAW DICTIONARY 541. This definition connotes active employment of the contents of the illegally intercepted communication for some purpose. See Fields v. Atchison, Topeka, and Santa Fe Railway Co., 985 F. Supp. 1308, 1314 (D.Kan.1997), as amended, 5 F. Supp. 2d 1160 (D.Kan.1998). Thus, merely listening to tape recordings of illegally intercepted telephone calls does not constitute a use within the meaning of Title III. Id.; see also Reynolds v. Spears, 857 F. Supp. 1341, 1345 n. 5 (W.D.Ark. 1994), aff'd, 93 F.3d 428 (8th Cir.1996) (defendant did not use tapes by merely overhearing them). But cf. Thompson v. Dulaney, 838 F. Supp. 1535, 1547 (D.Utah 1993).[16] Plaintiffs' arguments to the contrary must be rejected.
The media defendants further contend that copying and transcribing the tapes do not constitute uses because these actions merely aided them in listening to *514 the tapes. The Court agrees with this conclusion, but not its premise. The tapes were not copied because the media defendants wanted to passively listen to them. They were reproduced to aid in the further investigation of Peavy and Oliver. Still, plaintiffs must prove that defendants used the contents of the tapes in order to establish a Title III violation. See 18 U.S.C. § 2511(1)(d). The contents of an intercepted communication are not actively employed merely by copying or transcribing tapes. Stated differently, the "substance, purport, [and] meaning" of the communications are not "used" when the tapes are copied or transcribed. They are merely reproduced. Therefore, defendants are not liable for copying and transcribing the tapes.
However, the summary judgment evidence is replete with examples of how the media defendants used the contents of the tapes in other ways. They analyzed the tapes and compiled relevant portions to be transcribed. (WFAA Exh. F ¶¶ 12, 19). Riggs and Ward made notes and developed leads based on the substance of the intercepted conversations. (Plf. Exh. H at 611, 515-20; Plf. Exh. J at 110-11, 119-25, 157, 1176, 182, 242; WFAA Exh. D ¶¶ 15-20; WFAA Exh. F ¶¶ 12, 16-18). Ultimately, the tapes formed the basis for the broadcasts themselves.[17] The Court concludes that the media defendants actively employed the tapes to further their investigation of Peavy and Oliver. This constitutes "use" within the meaning of Title III.
D. Disclosure
Title III also prohibits the intentional disclosure of the contents of an illegally intercepted communication.[18] 18 U.S.C. § 2511(1)(c). "Disclose" means "[t]o bring into view by uncovering; to expose; to make known; to lay bare; to reveal to knowledge; to free from secrecy or ignorance, or make known." BLACK'S LAW DICTIONARY 464. A communication is disclosed every time it is played to a third party who has not yet heard it. Fultz v. Gilliam, 942 F.2d 396, 402 (6th Cir.1991). However, a defendant "need not play the tapes or repeat the conversations to be liable." Deal v. Spears, 980 F.2d 1153, 1158 (8th Cir.1992). Title III prevents the disclosure of "any information concerning the substance, purport, or meaning" of the communications. See 18 U.S.C. § 2510(8) (emphasis added). Therefore, even revealing the general nature of a communication or intimating its contents may constitute an actionable disclosure. See Deal, 980 F.2d at 1156.
The media defendants argue there was no disclosure because they did not play, refer to, or summarize the tapes in their broadcasts. However, the broadcasts revealed that Peavy and Oliver were involved in a plan to split commissions on insurance contracts. This information was initially derived from the tapes. Therefore, the media defendants disclosed the "substance, purport, and meaning" of the illegally intercepted communications. The fact that Riggs later obtained the same information from independent sources is irrelevant. See supra n. 17.
*515 Nor are the broadcasts themselves the only evidence of actionable disclosures shown in the record. It is undisputed that Charles Harman sent copies of 18 different tapes to Riggs with the intent and knowledge that he would play them. Riggs disclosed the contents of the tapes to P.J. Ward, who selected relevant portions and had them transcribed by a court reporter. Copies of the transcripts were furnished to John Miller and Paul Watler. Riggs and Harman also revealed the contents of the tapes to several law enforcement officials. Harman gave copies of the tapes to District Attorney John Vance, Detective Kevin Navarro, and FBI Agent Mark Chapman. All these actions constitute disclosures under Title III.
However, the Court cannot conclude as a matter of law that the Harmans are liable for disclosure of the "Race Tape" played at the DISD board meeting on September 28, 1995. Plaintiffs have introduced some evidence that suggests the Harmans sent this tape to three members of the Dallas school board. Portions of the Race Tape are identical to a tape the Harmans made for Riggs. In addition, plaintiffs allege that the type-face on a transcript created by Wilma Harman matches that found on notes that were included with the Race Tape.[19] However, this evidence alone will not support a summary judgment. The record also shows that WFAA, the Dallas County District Attorney, and the FBI all had copies of portions of the Race Tape at the time it was sent to school board members.[20] Moreover, the Harmans vehemently deny that they created or delivered the tape. This genuine issue of material fact precludes summary judgment in favor of either party. See Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987) (credibility determinations cannot be resolved on summary judgment).
In sum, the Court finds that the media defendants used and disclosed the contents of illegally intercepted communications. The Harmans intercepted those communications and disclosed their contents. However, defendants have raised various affirmative defenses in an attempt to escape liability under Title III and Texas Wiretap Act. The Court addresses those arguments next.
VI.
DEFENSES
The media defendants challenge the application of Title III and the Texas Wiretap Act on constitutional grounds. They argue that: (1) the First Amendment protects their right to receive, use, and publish truthful information about matters of public significance; (2) any restrictions on routine newsgathering and broadcast activities would operate as a prior restraint; and (3) the state and federal wiretap statutes are unconstitutionally vague and overbroad. The Harmans also raise several defenses. They contend that: (1) their illegal activities were compelled by necessity; (2) the intercepted communications did not affect interstate commerce; (3) Title III requires proof of a prior criminal conviction before civil liability attaches; and (4) the Texas Wiretap Act does not apply to cordless telephone calls.
A. First Amendment Issues
This case presents a classic conflict between the right to privacy and the right of a free press to publish truthful and newsworthy information. Both rights are plainly rooted in tradition and serve significant government interests. See Cox *516 Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 95 S. Ct. 1029, 1044, 43 L. Ed. 2d 328 (1975). For this reason, resolution of conflicts between these rights must "rely[ ] on limited principles that sweep no more broadly than the appropriate context of the instant case." The Florida Star v. B.J.F., 491 U.S. 524, 533, 109 S. Ct. 2603, 2609, 105 L. Ed. 2d 443 (1989). This factintensive analysis is guided by three considerations: (1) whether the media lawfully obtained truthful information about a matter of public significance; (2) whether the imposition of liability is necessary to further a state interest of the highest order; and (3) whether punishing the media for publishing truthful information would result in "timidity and self-censorship." Id. at 2609-10, citing Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S. Ct. 2667, 2671, 61 L. Ed. 2d 399 (1979) andCox Broadcasting, 95 S.Ct. at 1046-47; see also Peavy v. New Times, Inc., 976 F. Supp. 532, 538 (N.D.Tex.1997). The Court finds that these considerations must be resolved in favor of the media defendants in this case. Accordingly, Title III and the Texas Wiretap Act are unconstitutional as applied.
1.
The first question is whether the media defendants lawfully obtained truthful information about a matter of public significance. Plaintiffs concede that the information provided to Riggs and WFAA was truthful. The Court will therefore consider whether that information was lawfully obtained and concerned a matter of public significance.
a.
The Court has already found that the Harmans illegally intercepted and taped plaintiffs' private telephone conversations. Copies of the tapes were provided to WFAA and Riggs. Plaintiffs argue that this precludes a determination that the media defendants "lawfully obtained" the information contained on the tapes. This appears to be an issue of first impression. No court has ever addressed whether the government may punish a media defendant for publishing truthful information that has been unlawfully acquired by a source. That issue was specifically reserved by the Supreme Court in Florida Star, but is squarely presented here. See Florida Star, 109 S.Ct. at 2610 n. 8.
The First Amendment does not give the media license to violate the law. See Cohen v. Cowles Media Co., 501 U.S. 663, 669, 111 S. Ct. 2513, 2518, 115 L. Ed. 2d 586 (1991). More specifically, "media defendants do not have a privilege to place unlawful wiretaps." Boddie v. American Broadcasting Cos., 881 F.2d 267, 271 (6th Cir.1989), cert. denied, 493 U.S. 1028, 110 S. Ct. 737, 107 L. Ed. 2d 755 (1990). It is beyond question that the First Amendment would not protect the media defendants from liability had they violated the interception or procurement prongs of Title III. However, such is not the case here. The question is whether the First Amendment protects the media defendants in publishing truthful information acquired by the Harmans in violation of the federal and state wiretap statutes. The Court concludes that it does.
As previously discussed, the media defendants did not seek out the Harmans or induce them to intercept the communications. The Harmans contacted WFAA with a story that was potentially newsworthy. Receiving, investigating, and reporting on tips from such sources is a routine newsgathering technique. See Pell v. Procunier, 417 U.S. 817, 834, 94 S. Ct. 2800, 2810, 41 L. Ed. 2d 495 (1974) ("[A] journalist is free to seek out sources of information ... and ... government cannot restrain the publication of news emanating from such sources."). These types of activities are protected by the First Amendment. Daily Mail, 99 S.Ct. at 2671. Plaintiffs argue that the media should never be allowed to accept information obtained by a private party through an illegal wiretap. However, it is not incumbent upon the media to determine *517 whether information provided by a source has been derived through legal means. This would create an undue burden and hardship on the media and impede its ability to disseminate newsworthy information in a timely fashion. As long as a media defendant does not personally intercept a protected communication or procure another do so, any information acquired through legitimate newsgathering techniques is "lawfully obtained."[21]
b.
The next issue is whether the information involved a matter of public significance. Peavy was an elected member of the Dallas school board and appointed Oliver as the exclusive agent to obtain insurance on behalf of the district. The contents of the intercepted communications suggest an arrangement between Peavy and Oliver to split commissions on insurance policies sold to DISD. Clearly, this kickback scheme is a matter of great public significance.
Plaintiffs argue that the contents of private telephone conversations can never be a matter of public significance. At least one state court has suggested that a media defendant may be liable for publishing purely private information. Natoli v. Sullivan, 159 Misc. 2d 681, 606 N.Y.S.2d 504 (Sup.Ct.1993), aff'd, 206 A.D.2d 841, 616 N.Y.S.2d 318 (App.Div.1994). However, this begs the question presented here. The issue is whether the media can publish the contents of private communications that concern matters of public importance. Natoli provides little guidance on this issue. Indeed, the Supreme Court has admonished lower courts to decide each case on its own facts. Florida Star, 109 S.Ct. at 2609 ("We continue to believe that the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case."). The facts of this case show that the information provided to the media defendants involved matters of public significance.
2.
The second question is whether the imposition of liability is necessary to further a state interest "of the highest order." Id. at 2611. Certainly, privacy is such an interest. Id. at 2609. However, the privacy interest asserted in this case is not the constitutional right of privacy that is "the right to be let alone" from government intrusion into personal and intimate decisions and beliefs. See generally Carey v. Population Services International, 431 U.S. 678, 684-85, 97 S. Ct. 2010, 2016, 52 L. Ed. 2d 675 (1977) (citing cases). Rather, the privacy right implicated here arises under the federal and state wiretap laws.
While such statutory rights are certainly important, they fare poorly against the constitutional rights of a free and unfettered press. See, e.g. Florida Star, 109 S.Ct. at 2611 (privacy of victims of sexual offenses); Daily Mail, 99 S.Ct. at 2671 (anonymity of juvenile offenders). The privacy rights protected under Title III and the Texas Wiretap Act are no more compelling than those of rape victims or juvenile offenders. In fact, another judge in this district has found that the statutory right of privacy under Title III is not sufficiently compelling to warrant infringing on the constitutional right of the media to publish matters of public significance. Peavy, 976 F.Supp. at 539 (Buchmeyer, C.J.). This Court agrees with that conclusion. The imposition of liability on the media defendants is not necessary to protect a state interest of the "highest order."
*518 3.
The third and final consideration is whether punishing the media defendants for publishing the information will result in "timidity and self-censorship." Florida Star, 109 S.Ct. at 2610. The answer in the context of this particular case is obvious. The Harmans provided the media defendants with tapes of intercepted telephone calls that contained evidence of possible corruption by Dan Peavy. The Court has already determined that these tapes were lawfully obtained by the media defendants and concerned matters of great public interest. See Part VI-A(1). Significantly, the tapes were not played over the air or referred to in broadcasts. The media defendants even attempted to determine whether the interceptions were legal. Their actions were consistent with those of a responsible journalist to investigate leads, verify facts, and publish newsworthy information. To require anything more would undoubtedly result in "timidity and self-censorship." See Florida Star, 109 S.Ct. at 2612 (courts should be reluctant to punish the use of routine newsgathering techniques).
The Court concludes that the First Amendment prohibits the imposition of liability against the media defendants under the use and disclosure prongs of Title III and the Texas Wiretap Act.[22] Their motion for summary judgment should be granted on this ground.
B. Necessity
The Harmans claim that they were compelled by necessity to violate the law because Peavy threatened to harm them. "[T]he defense of necessity, or choice of evils, traditionally covered situations where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils." United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 634, 62 L. Ed. 2d 575 (1980). In order to prove this defense, the Harmans must establish: (1) that they were under an unlawful and present, imminent, or impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) that they did not recklessly or negligently place themselves in a situation where they would be forced to chose the criminal conduct; (3) that they had no reasonable legal alternative to violating the law; and (4) a direct causal relationship between the criminal action taken and avoidance of the harm. United States v. Willis, 38 F.3d 170, 175 (5th Cir.1994), cert. denied, 515 U.S. 1145, 115 S. Ct. 2585, 132 L. Ed. 2d 834 (1995).[23] These elements must be assessed under an objective rather than a subjective standard. Id.
The Harmans have failed to meet their burden of proof on at least two essential elements of this defense. The threats they overheard, although perhaps frightening, were not present, immediate, and impending. See United States v. Stevens, 985 F.2d 1175, 1182 (2d Cir.1993) (generalized fear not tied to an immediate threat of harm does not implicate necessity defense); United States v. Tanner, 941 F.2d 574, 587 (7th Cir.1991), cert. denied, 502 U.S. 1102, 112 S. Ct. 1190, 117 L. Ed. 2d 432 (1992) (fear alone is insufficient to establish defense of necessity). There is no indication that Peavy had a present or immediate intention to carry out any of the fanciful schemes he discussed with his neighbors. Moreover, the threats were not communicated directly to the Harmans or anyone in privity with them. See United States v. Gordon, 526 F.2d 406, 408 (9th *519 Cir.1975) (threats communicated by telephone do not satisfy immediacy requirement).
Nor have the Harmans established that they had no reasonable legal alternative to violating the law. The defense of necessity is reserved for cases of real emergency. See United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir.1980), cert. denied, 450 U.S. 924, 101 S. Ct. 1375, 67 L. Ed. 2d 353 (1981). It is not available unless "[t]here is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory." United States v. Boomer, 571 F.2d 543, 545 (10th Cir.), cert. denied, 436 U.S. 911, 98 S. Ct. 2250, 56 L. Ed. 2d 411 (1978). The evidence plainly shows that the Harmans had both the time and opportunity to contact the authorities. Their limited attempts to involve law enforcement officials do not prove that any further complaints would have been futile. Although the Harmans subjectively believed that law enforcement authorities were giving them the "run around," no reasonable person confronted with similar threats would have abandoned attempts to get the police involved after making a single report. See United States v. Rawlings, 982 F.2d 590, 593 (D.C.Cir. 1993) (defendant cannot claim defense if he passed up opportunity to seek aid of law enforcement); United States v. Laetividal-Gonzalez, 939 F.2d 1455, 1465 (11th Cir.1991), cert. denied, 503 U.S. 912, 112 S. Ct. 1280, 117 L. Ed. 2d 505 (1992) (same). This defense fails as a matter of law.
C. Nexus to Interstate Commerce
The Harmans further contend that the intercepted communications involved telephone calls between local residents and therefore did not affect interstate commerce. This argument presumes that a nexus to interstate commerce is an essential element of a Title III claim. It is not. The elements of a violation are contained in 18 U.S.C. § 2511(1). In contrast, the nexus requirement is set forth in 18 U.S.C. § 2510(1). This section defines a "wire communication" as one made by "wire, cable, or other like connection ... furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign commerce or communications affecting interstate or foreign commerce." Id. § 2510(1) (emphases added). Given its placement in the text of the statute, it seems more likely that the reference to interstate commerce was merely an expression of Congress's power to regulate the matters covered by Title III.
Moreover, the federal wiretap statute also applies to communications carried by "facilities for the transmission of interstate or foreign commerce." Id. § 2510(1). The telephone is indisputably an instrumentality of interstate commerce. See United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 233, 139 L. Ed. 2d 165 (1997); Kratz, 477 F.Supp. at 475. As such, it is subject to federal regulation even when used purely for intrastate purposes. See Dupuy v. Dupuy, 511 F.2d 641, 643-44 (5th Cir.1975) (intrastate use of telephone confers federal jurisdiction over private cause of action under Section 10 of the Securities and Exchange Act); Aquionics Acceptance Corp. v. Kollar, 503 F.2d 1225, 1228 (6th Cir.1974) (same). This argument is without merit.
D. Prior Criminal Conviction
The Harmans also maintain that Title III requires proof of a prior criminal conviction before civil liability attaches.[24] They base this theory on an overly generous reading of the statute. Section 2520(a) provides that "any person whose wire, oral, or electronic communication is intercepted, *520 disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate." 18 U.S.C. § 2520(a) (emphasis supplied). This necessarily requires proof of a criminal violation. See Kratz, 477 F.Supp. at 483 ("[N]o cause of action arises under Title III unless the criminal provisions of the statute have been violated."). However, civil liability is not predicated on proof of a criminal conviction. Indeed, Congress has rejected such an interpretation of Title III:
The plaintiff may bring a civil action under section 2520 whether or not the defendant has been subject to a criminal prosecution for the acts complained of, but in the absence of such prosecution and conviction, it is the plaintiff's burden to establish that the requirements of the section are met.
1986 U.S.C.C.A.N. at 3581. This argument is without merit.
E. Texas Wiretap Act Defense
Finally, the Harmans contend that the Texas Wiretap Act does not apply to cordless telephones. They cite to a provision in the Texas Code of Criminal Procedure that applies to wiretap orders obtained by state law enforcement personnel. See TEX.CODE CRIM.PROC.ANN. art. 18.20 (Vernon Supp.1997). The definition of "wire communications" under this statute specifically excludes the radio portion of cordless telephone communications. Id. at § 1(1). Therefore, the Harmans reason that their conduct is not actionable under the Texas Wiretap Act.
The Court has found no authority to support this novel argument. The Texas Wiretap Act broadly prohibits the interception, use, or disclosure of any communication "transmitted in whole or in part with the aid of a wire or cable." TEX.CIV. PRAC. & REM.CODE ANN. § 123.001(1). Communications intercepted from cordless telephones are not excluded under the Act. The definitions contained in the civil statute control notwithstanding the provisions of the Texas Code of Criminal Procedure.
In sum, none of the defenses raised by the Harmans defeat plaintiffs' claims under Title III or the Texas Wiretap Act. Plaintiffs' motion for summary judgment should be granted and the Harmans' motion should be denied.
VII.
COMMON LAW CLAIMS
Plaintiffs assert claims against all defendants for invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. In addition, Eugene Oliver has sued the media defendants for tortious interference with contractual relations. The parties have filed cross-motions for summary judgment as to these common law claims.
A. Invasion of Privacy
Plaintiffs allege two distinct violations of their right to privacy. First, they maintain that all defendants intruded upon their seclusion, solitude, or private affairs. (Peavy WFAA Complaint ¶ 7; Peavy Harman Complaint ¶ 5; Oliver Complaint ¶ 7). Second, plaintiffs assert that the media defendants publically disclosed embarrassing facts about them. (Peavy WFAA Complaint ¶ 6; Oliver Complaint ¶ 8). The Court will address each aspect of the privacy claims separately.
1.
A plaintiff may recover for invasion of privacy by intrusion if he proves that: (1) the defendant intentionally intruded, physically or otherwise, upon his solitude, seclusion, private affairs, or concerns; and (2) the intrusion would be highly offensive to a reasonable person. RESTATEMENT (SECOND) OF TORTS § 652B (1976); Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex.1993). The intrusion element requires a positive act by the defendant, other than publication, that encroaches on the plaintiff's seclusion. Reuber v. Food Chemical News, Inc., 925 *521 F.2d 703, 718-19 (4th Cir.), cert. denied, 501 U.S. 1212, 111 S. Ct. 2814, 115 L. Ed. 2d 986 (1991). A media defendant is not liable for merely receiving information that has been tortiously obtained by another, even if it has knowledge of the impropriety. See McNally v. Pulitzer Publishing Co., 532 F.2d 69, 79 n. 14 (8th Cir.), cert. denied, 429 U.S. 855, 97 S. Ct. 150, 50 L. Ed. 2d 131 (1976); Pearson v. Dodd, 410 F.2d 701, 705 (D.C.Cir.), cert. denied 395 U.S. 947, 89 S. Ct. 2021, 23 L. Ed. 2d 465 (1969).
a.
The Harmans first contend that their intrusion was not "willful" because they relied in good faith on the advice of law enforcement officials. They cite several Texas cases for the proposition that an invasion of privacy must be "willful" or done with "conscious disregard for the rights of others." See, e.g. Closs v. Goose Creek Consolidated Independent School District, 874 S.W.2d 859, 870 (Tex.App. Texarkana 1994, no writ). The terms "willful" and "intentional" are often used synonymously in tort law. See Closs, 874 S.W.2d at 871. Thus, plaintiffs need only prove that the Harmans desired the consequences of their actions or reasonably believed that such consequences were likely to result therefrom. See Part V-A(1). There is no question that the Harmans intended to intercept and tape plaintiffs' private telephone conversations. Whether they believed their actions were legal is irrelevant.
The Harmans further argue that their conduct was not "unwarranted." They cite threats made by Peavy to remove them from the neighborhood and evidence of public corruption to justify their illegal wiretap activities. Although some courts have noted that an actionable intrusion must be "unwarranted," no reported decision has addressed this requirement in any detail. See, e.g. Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613, 622 (Tex.App. Corpus Christi 1994, no writ), citing Billings v. Atkinson, 489 S.W.2d 858, 859-60 (Tex.1973) (invasion of privacy must be "substantial" and "unwarranted"). The Court therefore questions the legal significance of this aspect of an intrusion claim. Nevertheless, the summary judgment evidence establishes that the Harmans' actions were "unwarranted" as a matter of law. Petty disputes between neighbors do not justify the interception of private telephone calls. Nor does the revelation of an illegal insurance kickback scheme between Peavy and Oliver excuse this intrusion. Although the Harmans paint themselves as "concerned citizens," their actions were nothing short of vigilantism motivated by self-interest. The Court is unwilling to condone such conduct. Accordingly, the Harmans are not entitled to summary judgment on the intrusion claim.
Plaintiffs, on the other hand, are entitled to summary judgment against the Harmans. Eavesdropping is the quintessential example of a highly offensive intrusion upon seclusion. The tort is defined as "a physical invasion of a person's property or by eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying." Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App. Fort Worth 1982, no writ) (emphasis added); see also Billings, 489 S.W.2d at 860; RESTATEMENT (SECOND) OF TORTS § 652B, cmt. b. The Harmans listened to plaintiffs' telephone conversations for several months with the aid of a police scanner. This constitutes intrusion as a matter of law.
b.
Plaintiffs contend that the media defendants are liable for intrusion because they encouraged the interceptions and accepted the fruits of this illegal activity. However, the Court has held that there is no evidence of active participation on the part of the media defendants. See Part V-B. Harman told Riggs that he planned to record future telephone calls and offered to provide him copies of the tapes. Riggs accepted the offer. He also asked Harman *522 to leave the recorder running throughout the entire conversation and not to edit the tapes so their authenticity could not be questioned. This benign suggestion does not amount to "a positive act by the [media] defendants ... that encroaches on the plaintiffs' seclusion." Reuber, 925 F.2d at 718. The media defendants are entitled to summary judgment on the intrusion claim.
2.
Plaintiffs further allege that the media defendants publically disclosed embarrassing facts about them. In order to prove this claim, plaintiffs must establish that: (1) the publicized information contains highly intimate or embarrassing facts about their private affairs; (2) the publication of this information would be highly objectionable to a reasonable person; (3) the information was communicated to the public at large; and (4) the information was not a matter of legitimate concern to the public. Johnson v. Sawyer, 47 F.3d 716, 723 (5th Cir.1995); Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 683-85 (Tex.1976), cert. denied, 430 U.S. 931, 97 S. Ct. 1550, 51 L. Ed. 2d 774 (1977).
The corruption of a local school board official undoubtedly is a matter of legitimate public concern. See Wallace v. Texas Tech University, 80 F.3d 1042, 1050-51 (5th Cir.1996); Conaway v. Smith, 853 F.2d 789, 796 (10th Cir.1988). However, plaintiffs believe that information obtained in violation of the federal wiretap statute necessarily negates any public interest. The Court disagrees. Title III and the tort of disclosure focus on different types of conduct. Title III broadly prohibits the dissemination of information obtained in violation of the wiretap laws regardless of content. Conversely, tort liability is predicated on the content of the disclosure regardless of how the information is obtained. See McNally, 532 F.2d at 79. Title III does not transform every violation of the statute into an actionable state law claim for public disclosure of private facts. See Johnson, 47 F.3d at 734-36 (rejecting argument that disclosure of information made confidential by tax laws is per se private, intimate, and embarrassing). "This requirement is necessarily one which can only be considered in the context of each particular case, considering the nature of the information and the public's legitimate interest in its disclosure." Industrial Foundation, 540 S.W.2d at 685. Clearly, the public had a right to know whether Peavy and Oliver agreed to split commissions on insurance policies sold to DISD. The Court concludes that the media defendants are entitled to summary judgment on this claim.
B. Intentional Infliction of Emotional Distress
Plaintiffs have sued all defendants for intentional infliction of emotional distress. (Peavy WFAA Complaint ¶ 8; Peavy Harman Complaint ¶ 7; Oliver Complaint ¶ 10). Texas law recognizes such a claim where: (1) defendants acted intentionally or recklessly; (2) their conduct was extreme and outrageous; and (3) plaintiffs suffered severe emotional distress as a result of that behavior. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993); RESTATEMENT (SECOND) OF TORTS § 46 (1965). Defendants argue that plaintiffs cannot establish these elements. In addition, the media defendants contend that this claim is barred on constitutional grounds.
1.
Defendants first argue that their conduct was not "extreme or outrageous." This element is established "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Twyman, 855 S.W.2d at 621, quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt. d. Illegal wiretap activities may satisfy this *523 requirement. See Scutieri v. Estate of Revitz, 683 F. Supp. 795, 802 (S.D.Fla. 1988). But cf. Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (conduct of employer who monitored workplace phone calls not extreme and outrageous). However, the Court need not resolve this issue because none of the plaintiffs have established that their emotional distress was "severe."
Texas law requires a proof of emotional distress so severe that no reasonable person could be expected to endure it without experiencing unreasonable suffering. RESTATEMENT (SECOND) OF TORTS § 46, cmt. j; American Medical International, Inc. v. Giurintano, 821 S.W.2d 331, 341 (Tex.App. Houston [14th Dist.] 1991, no writ). Plaintiffs must show more than "mere worry, anxiety, vexation, embarrassment, or anger." See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). The evidence adduced by plaintiffs fails to meet this standard. Anna Oliver testified that she cried a lot and experienced nightmares and insomnia. (Plf.Exh. P ¶ 2). Sally Peavy had nightmares, lost friends, and suffered from anxiety and embarrassment. (Plf.Exh. N ¶ 2). Eugene Oliver developed stomach cramps and headaches, and became worried and anxious when out in public. (Plf.Exh. O ¶ 2). Dan Peavy experienced headaches, depression, anxiety, and fatigue. (Plf.Exh. M ¶ 2). Both Oliver and Peavy claimed they had trouble sleeping and became short-tempered. (Plf.Exh. O ¶ 2; Plf.Exh. M ¶ 2). This does not constitute "severe emotional distress" as a matter of law. See, e.g. McCray v. DPC Industries, Inc., 875 F. Supp. 384, 393 (E.D.Tex.1995) (insomnia, anxiety, and fright); Badgett v. Northwestern Resources Co., 818 F. Supp. 998, 1004 (W.D.Tex.1993) (worry, negative attitude, intermittent headaches, and depression). Cf. Wilson v. Monarch Paper Co., 939 F.2d 1138, 1141 (5th Cir.1991) (emotional distress sufficiently severe where plaintiff became suicidal); Motsenbocker v. Potts, 863 S.W.2d 126, 135 (Tex.App. Dallas 1993, no writ) (same). It is also significant that plaintiffs were not required to seek help from a mental health professional. This further militates against a finding of "severe emotional distress." See McCray, 875 F.Supp. at 393; Villasenor v. Villasenor, 911 S.W.2d 411, 417 (Tex.App. San Antonio 1995, no writ); Benavides v. Moore, 848 S.W.2d 190, 196 (Tex.App. Corpus Christi 1992, writ denied). Defendants are entitled to summary judgment on this claim.
2.
The media defendants further contend that this claim is precluded by the First Amendment and Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988). In Falwell, the Supreme Court held that public officials and public figures may not recover for intentional infliction of emotional distress by reason of publication "without showing in addition that the publication contains a false statement of fact which was made with `actual malice' ..." Falwell, 108 S.Ct. at 882. Dan Peavy was a public official by virtue of his position as an elected member of the Dallas school board. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S. Ct. 2997, 3009, 41 L. Ed. 2d 789 (1974) ("An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs."). Eugene Oliver became a public figure when he agreed to split commissions with Peavy on insurance policies sold to DISD.[25]See Gertz, 94 S.Ct. at 3012. Plaintiffs concede that the information published about them was true.
Plaintiffs attempt to side-step these constitutional limitations by arguing that it was extreme and outrageous for the media defendants to investigate their activities *524 based on the contents of illegally intercepted telephone calls. However, it is clear that any damages sustained by plaintiffs resulted from the publication of this information. Falwell precludes an intentional infliction of emotional distress claim against the media defendants.
C. Tortious Interference
Eugene Oliver alleges that the media defendants disparaged his name and reputation "privately and in a series of television broadcasts." (Oliver Complaint ¶ 14). As a result, Washington National Insurance Company stopped commission payments on disability income insurance policies sold to DISD and Mary Kay Cosmetics refused to consummate a contract for cancer insurance. Oliver has sued for tortious interference with contractual relations. (Oliver Complaint ¶¶ 12-14). The media defendants contend that this claim is barred by limitations.
A tortious interference claim based on disparaging or defamatory statements about a plaintiff is treated as a defamation action. See KTRK Television v. Felder, 950 S.W.2d 100, 108 (Tex.App. Houston [14th Dist.] 1997, no writ). Such claims are governed by a one-year statute of limitations. Laird v. Texaco, Inc., 722 S.W.2d 519, 521 (Tex.App. Beaumont 1986, no writ); Moore & Associates v. Metropolitan Life Insurance Co., 604 S.W.2d 487, 491 (Tex.Civ.App. Dallas 1980, no writ). The statute begins to run from the date the disparaging words are spoken or published. Laird, 722 S.W.2d at 521-22. The media defendants broadcast their report in July and August of 1995. However, Oliver did not file this lawsuit until December 30, 1996. His tortious interference claim is clearly barred by limitations.
D. Conspiracy
Plaintiffs allege that the defendants conspired to violate their rights under the federal wiretap statute and common law. (Peavy WFAA Complaint ¶ 7; Peavy Harman Complaint ¶ 6; Oliver Complaint ¶¶ 9, 15). A civil conspiracy is "a combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means." Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex.1995). An actionable conspiracy consists of: (1) two or more persons; (2) an objective to be accomplished; (3) a meeting of the minds on the objective; (4) one or more overt acts; and (5) damages as a proximate result of the conduct. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). Each participant in a conspiracy must have the specific intent to injure the plaintiff. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856 (Tex.1968). Thus, the crux of a civil conspiracy is the harm intended rather than the agreement itself. Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 614 (Tex.1996). Merely proving a joint intent to engage in conduct that resulted in injury is not sufficient. Juhl v. Airington, 936 S.W.2d 640, 644 (Tex.1996).
The Court initially observes that plaintiffs have failed to establish any of their claims against the media defendants. This does not necessarily preclude a conspiracy finding. A defendant is liable for conspiracy if he "participated" in an underlying tort for which the plaintiff seeks to hold at least one defendant liable. Tompkins v. Cyr, 995 F. Supp. 664, 685 (N.D.Tex.1998); Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996). "Participation" includes planning, assistance, or encouragement of another's unlawful acts. Tompkins, 995 F.Supp. at 685; Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 926 (Tex.1979).
Nevertheless, the Court finds no evidence of a civil conspiracy. Defendants honestly believed that their wiretap activities were lawful. They relied in good faith on the advice of law enforcement officials and legal counsel. If defendants did not know their actions were illegal, they could not have any specific intent to "accomplish *525 an unlawful purpose or to accomplish a lawful purpose by unlawful means." See Juhl, 936 S.W.2d at 644. One cannot conspire to commit a wrong about which he has no knowledge. Schlumberger Well Surveying, 435 S.W.2d at 857. Plaintiffs argue that reliance on the advice of others is irrelevant. While this may be true in the context of their other claims, defendants' good faith belief that their conduct was legal is dispositive of the conspiracy allegations. Defendants are entitled to judgment as a matter of law on this claim.
E. Damages
Finally, the Harmans contend that plaintiffs have failed to prove damages as a result of their illegal wiretap activities and tortious conduct. This argument borders on frivolous. Plaintiffs are entitled to statutory and actual damages under both Title III and the Texas Wiretap Act.[26]See 18 U.S.C. § 2520(c)(2); TEX.CIV.PRAC. & REM CODE.ANN. § 123.004. In addition, plaintiffs can recover any damages proximately caused by the invasion of their privacy. These damage issues should be deferred until trial. The Harmans are not entitled to summary judgment on this ground.
RECOMMENDATION
The cross-motions for summary judgment should be granted in part and denied in part. Plaintiffs are entitled to judgment as a matter of law on their claims against the Harmans for violations of Title III and the Texas Wiretap Act and for invasion of privacy by intrusion. All defendants are entitled to judgment as a matter of law on plaintiffs' common law claims for public disclosure of private facts, intentional infliction of emotional distress, tortious interference with contractual relations, and civil conspiracy. The media defendants are entitled to judgment as a matter of law on their affirmative defense that Title III and the Texas Wiretap Act are unconstitutional as applied to them.
All claims against the media defendants should be dismissed with prejudice. These cases should proceed to trial on the issue of damages and whether the Harmans intentionally disclosed the contents of the "Race Tape" in violation of Title III and the Texas Wiretap Act.
NOTES
[1] Dan Peavy v. New Times, Inc., No. 3-96-CV-0547-R (N.D.Tex., filed February 26, 1996); Dan Peavy, et al. v. Charles Harman, et al., No. 96-CV-1506-BD (N.D.Tex., filed May 28, 1996); Dan Peavy, et al. v. WFAA-TV, et al., No. 96-CV-2945-R (N.D.Tex., filed October 25, 1996); Eugene Oliver, et al. v. WFAA-TV, et al., No. 3-96-CV-3436-L (N.D.Tex., filed December 30, 1996); Dan Peavy v. Dallas Independent School District, et al., No. 97-CV-2163-L (N.D.Tex., filed September 3, 1997); Amy Peavy v. Charles Harman, No. 3-97-CV-2685-BD (N.D.Tex., filed November 3, 1997); Houston Goodspeed v. Charles Harman, No. 3-97-CV-2681-BD (N.D.Tex., filed November 3, 1997); Sue Kendrick v. Charles Harman, No. 3-97-CV-2682-BD (N.D.Tex., filed November 3, 1997); John Kendrick v. Charles Harman, No. 3-97-CV-2683-BD (N.D.Tex., filed November 3, 1997); Virginia Moore v. Charles Harman, No. 3-97-CV-2686-BD (N.D.Tex., filed November 3, 1997); Don Timberlake v. Charles Harman, No. 3-97-CV-2684-BD (N.D.Tex., filed November 3, 1997); Dave Richardson v. Charles Harman, No. 3-97-CV-2739-BD (N.D.Tex., filed November 7, 1997); James Stephenson v. Charles Harman, No. 3-97-CV-2740-BD (N.D.Tex., filed November 7, 1997);
[2] Peavy and Harman have been involved in a number of petty disputes over the years. On one occasion, Peavy sued Harman because he refused to cut back vegetation on his property that obstructed Peavy's view of a lake. More recently, Harman complained to code enforcement officials after Peavy installed high intensity security lights around his house.
[3] Vance met with Harman on January 17, 1995. Also present were Assistant District Attorney Mike Gillett and Investigator Bob Jennings. Harman states that all the participants reassured him that his actions were legal.
[4] Ward was already familiar with Peavy through previous complaints about his home construction business.
[5] The contents of this tape are described at length in Peavy v. New Times, Inc., 976 F. Supp. 532, 534-35 (N.D.Tex.1997). A detailed recitation of these highly offensive remarks is neither necessary nor appropriate to the disposition of the pending motions.
[6] The Peavys sued the Harmans on May 28, 1996. They filed a separate action against WFAA and Riggs on October 25, 1996. The Olivers sued the Harmans, WFAA, and Riggs on December 30, 1996. All three lawsuits arise out of the same facts and have been consolidated for pretrial purposes.
[7] A case may not be appropriate for summary disposition even if the parties have filed cross-motions for summary judgment. See, e.g. Bricklayers, Masons and Plasterers International Union of America v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir.1975); Dutmer, 937 F.Supp. at 589. The Court must still examine the record to determine whether there are genuine issues of material fact for trial. John v. State of Louisiana Board of Trustees for State Colleges and Universities, 757 F.2d 698, 705 (5th Cir.1985); Schlytter v. Baker, 580 F.2d 848, 849 (5th Cir.1978).
[8] Plaintiffs also assert claims under the Texas Wiretap Act, TEX.CIV.PRAC. & REM.CODE ANN. § 123.001, et seq. (Vernon 1986). The statute provides, in pertinent part:
A party to a communication may sue a person who:
(1) intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept a communication; [or]
(2) uses or divulges information that he knows or reasonably should know was obtained by interception of the communication.
Id. § 123.002(a)(1)-(2). The Texas statute does not contain an intent element and differs from the federal statute only in that limited respect.
[9] Katz and Berger effectively overruled Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928). Olmstead was often cited for the proposition that wiretapping did not violate the Fourth Amendment because it involved neither a physical intrusion nor the seizure of tangible property. However, Katz recognized that "the underpinnings of Olmstead ... have been so eroded by our subsequent decisions that the `trespass' doctrine there enunciated can no longer be regarded as controlling." Katz, 88 S.Ct. at 512.
[10] Plaintiffs rely on Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972). However, the Gelbard court assumed that the wiretaps at issue violated Title III. Gelbard, 92 S.Ct. at 2360. This Court is unable to make such an assumption.
[11] Plaintiffs recognize that they need this evidence to establish their cause of action and have submitted transcripts of four tapes in support of their motion for summary judgment. (Plf.Exh. A-1).
[12] Some of plaintiffs' objections mirror the arguments raised in their motion to suppress. These objections should be overruled for the reasons stated in Part IV-A of this opinion.
[13] Kratz was a civil action brought under the federal wiretap statute. Defendant believed that his wife was having an extra-marital affair and asked his attorney whether he could place a wiretap on the family telephone. Counsel researched the applicable law and found a case from another jurisdiction that recognized an spousal immunity exception under Title III. Kratz, 477 F.Supp. at 466, citing Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S. Ct. 176, 42 L. Ed. 2d 141 (1974). However, counsel did not discover a more recent case from his own jurisdiction that rejected such an exception. Id. at 466 n. 4, citing Remington v. Remington, 393 F. Supp. 898 (E.D.Pa.1975). The court refused to adopt the spousal exception but recognized a defense of "reasonable reliance upon a judicial interpretation of Title III." Id. at 484.
[14] The media defendants cite United States v. Schilleci, 545 F.2d 519 (5th Cir.1977) for the proposition that the use and disclosure prongs of the wiretap statute require proof of specific intent. However, the defendant in that case was charged with conspiracy to intercept wire and oral communications. Id. at 521. Conspiracy is a specific intent crime. The Court has previously determined that a criminal violation of Title III only requires proof of general intent. See Part VII-A(1).
[15] The media defendants did not intercept any communications and are not liable for merely listening to the tapes. See United States v. Turk, 526 F.2d 654, 658 (5th Cir.), cert. denied, 429 U.S. 823, 97 S. Ct. 74, 50 L. Ed. 2d 84 (1976).
[16] The district court in Thompson was "not persuaded by the innovative argument that the term `use,' as utilized in the statute, is an active, rather than a passive term." Thompson, 838 F.Supp. at 1547. However, the court cited no authority or rationale to support its conclusion. This Court does not find Thompson persuasive and declines to follow it.
[17] The media defendants argue that their subsequent actions dissipated the taint of any initial illegality. They point out that the tapes were not played over the air and independent sources were developed for every fact reported. This argument is based on a recognized exception to the exclusionary rule known as the attenuation doctrine. Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 307 (1939); United States v. Sheppard, 901 F.2d 1230, 1234 (5th Cir.1990). However, the exclusionary rule does not excuse a substantive violation of the law. Whether or not the media defendants used other sources to develop their story, they also used the illegal tapes.
[18] The Texas Wiretap Act uses the term "divulge" instead of "disclose." TEX.CIV.PRAC. & REM.CODE ANN. § 123.002(a)(2). "Divulge" means "[t]o disclose or make known." BLACK'S LAW DICTIONARY 480. The Court therefore concludes that the same conduct is prohibited under both state and federal law.
[19] Plaintiffs further argue that the FBI concluded that the handwriting on the delivery ticket matched Wilma Harman's. This overstates the evidence. The FBI report raises this possibility. However, "[a] definitive determination could not be reached due to the absence of sufficiently comparable known writing and due to unexplained variation not found on the basis of the available known writing." (Plf. Exh. NN-2 at P000049).
[20] Plaintiffs do not contend that the media defendants disseminated the Race Tape.
[21] Plaintiffs further argue that the information was not "lawfully obtained" because the media defendants used and disclosed the intercepted communications in violation of Title III. This misses the mark. The focus is on how the information was obtained, not what was done with it thereafter. See Florida Star, 109 S.Ct. at 2609, 2611; Peavy, 976 F.Supp. at 538.
[22] This constitutional protection also extends to any internal uses or disclosures of the intercepted communications. The right to publish truthful information on matters of public significance would be meaningless if the media were not allowed to determine whether the information it seeks to publish is in fact truthful.
[23] Willis involved the defense of duress. However, the same elements are required to establish a necessity defense. See Bailey, 100 S.Ct. at 634.
[24] Charles Harman conveniently ignores the fact that he pled guilty to one count of unlawful interception and paid a $5,000 fine.
[25] Sally Peavy and Anna Oliver are not public figures or public officials. However, their intentional infliction of emotional distress claims are based entirely on the publication of damaging information about their husbands.
[26] Title III provides that "the court may assess as damages whichever is the greater of
(a) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or
(b) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.
18 U.S.C. § 2520(c)(2). The Texas Wiretap Act provides that "[a] person who establishes a cause of action under this chapter is entitled to ...
(2) statutory damages of $1,000; [and]
(3) all actual damages in excess of $1,000 ..."
TEX.CIV.PRAC. & REM.CODE ANN. § 123.004. Both statutes also provide for injunctive relief, reasonable attorney's fees, and punitive damages in appropriate cases. 18 U.S.C. § 2520(b)(1)(3); TEX.CIV.PRAC. & REM.CODE ANN. § 123.004(1), (4) & (5). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2427764/ | 565 S.W.2d 534 (1978)
Deborah MORRIS, Appellant,
v.
The STATE of Texas, Appellee.
No. 54591.
Court of Criminal Appeals of Texas, Panel No. 3.
May 10, 1978.
Joe Petronis, Killeen, for appellant.
Pat Ridley, County Atty., and Thomas S. Morgan, Asst. County Atty., Belton, J. Rush Milam, III, City Atty., Killeen, for the State.
Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
OPINION
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for the offense of prostitution. V.T.C.A., Penal Code, Sec. 43.02(a)(1). The trial court assessed punishment at a fine of $200.
Initially the appellant challenges the sufficiency of the evidence to support the conviction.
Frank Aaron, Jr., a reserve sergeant with the Killeen Police Department, testified that on the date of the offense he was on duty in civilian clothes in the downtown Killeen area. At approximately 10:45 p. m. on November 1, 1975, he was standing in front of the Fogle Auto Supply Store when he was approached by the appellant. She initially asked him if he were a "narc," which he denied. She then asked, "Are you ready?" He responded, "Ready for what?" At this point, according to Aaron, the appellant was about two or three feet from him and she made "a driving motion with her body, with her shoulders, hips, and legs." He said he could "dig it" and asked what it was going to cost since he understood her motions to mean that she was offering to have sexual intercourse with him. She then asked him how much money he had and he told her that he could spend $20. She said, "That would get it." They then agreed to meet at a place she had nearby. The appellant left and Aaron was signaled *535 by some officers who had him under observation to remain where he was. Aaron additionally testified without objection that the offense occurred on a military payday weekend and that there was a high incidence of prostitution activity at that time in Killeen.
On cross-examination, Aaron testified that prior to the night of the alleged offense he did not recall having seen the appellant's picture among those of known prostitutes that were kept by the Killeen Police Department.
Officer Reed of the Killeen Police Department testified that on November 1, 1975, he observed a conversation between Frank Aaron and the appellant. Reed stated that after he received a signal from Aaron, he identified the female that he had been talking to as the appellant. He testified that he was familiar with the appellant prior to November 1, 1975, and that his organization had a file on her at that time.
The appellant testified in her own behalf and stated that on the night in question she was simply out walking around the block and had asked Aaron for a light. She said that after they got talking, Aaron propositioned her. She testified: "He then asked me if I was working, and I asked him what did he mean by working, and he said, do you walk the block? And I said, what are you talking about? And he said, I wanted to go to bed. He said I have $20 and I just looked at him, you know." She then asked him if he were a policeman and walked off.
The jury as the exclusive judge of the facts resolved the conflict in the testimony against the appellant. See Art. 36.13, V.A. C.C.P.
V.T.C.A. Penal Code, Sec. 43.02(a)(1), at the time of the instant offense provided that a person commits an offense if he knowingly offers to engage in sexual conduct in return for a fee payable to the actor. An offense under this provision was at that time a Class C misdemeanor. See V.T.C.A. Penal Code, Sec. 12.23.[1]
The evidence is sufficient to sustain the conviction.
The appellant next contends that the trial court erred by failing to sua sponte declare a mistrial during the State's argument.
The record reflects the following occurred during the prosecutor's final argument:
"The State has never mentioned the defendant's color. He has made that a big thing. He did mention that the police officer was inexperienced. Yes, and it was obvious even to this inexperienced police officer that she had solicited him on Ave. D.
"We all went through this and annually we go through on April the 15th paying our taxes to be sure that we have admirably supported
"MR. MORRIS [defense counsel]: Objection, Your Honor, counsel is getting outside of the record again.
"THE COURT: Sustain the objection.
"MR. MILAN [prosecutor]: Be that as it may, this is illegal income she is getting.
"MR. MORRIS: Objection, Your Honor. I would like to object. There has been no testimony that my client has received any money and I again feel that the counsel is bringing up matters outside of the record.
"THE COURT: I will sustain the objection."
There was no request for an instruction, nor any motion for a mistrial. The appellant received all the relief she requested. Moffett v. State, Tex.Cr.App., 555 S.W.2d 437; Salinas v. State, Tex.Cr.App., 542 S.W.2d 864; Holloway v. State, Tex.Cr. App., 525 S.W.2d 165. The argument was not such as to require the court to sua sponte grant a mistrial.
The judgment is affirmed.
NOTES
[1] V.T.C.A. Penal Code, Sec. 43.02, was amended by Acts 1977, 65 Leg., p. 757, ch. 286, sec. 1, effective May 27, 1977, making minor wording changes in the section and elevating this offense from a Class C misdemeanor to a Class B misdemeanor. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2427765/ | 565 S.W.2d 934 (1978)
John Turner JONES, Appellant,
v.
The STATE of Texas, Appellee.
No. 55598.
Court of Criminal Appeals of Texas, Panel No. 2.
May 24, 1978.
*935 Howard G. Wilson, Mesquite, for appellant.
Henry Wade, Dist. Atty., Fred C. McDaniel, Rider Scott and Brady Sparks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.
Before ONION, P. J., and DALLY and VOLLERS, JJ.
OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for aggravated robbery where the punishment was assessed by the jury at sixty-five (65) years' confinement in the Texas Department of Corrections.
At about 6:00 p. m. on October 2, 1975, the manager of the Robert Hall Department Store on Greenville Avenue in Dallas was robbed, at gunpoint, by five people. The manager was badly beaten and $325.00 was taken. Shortly thereafter the police were called and a description of the suspects and their car was broadcast over the police radio. About 6:30 p. m. a car matching the description of the get-away car was seen just after it had been parked by some apartments. A few minutes later the car was seen leaving the apartment parking lot with three people in it. These three people matched the descriptions received from the Robert Hall Store and they were stopped and arrested.
It was ascertained from questioning at least one of the suspects at the police station that appellant and another person had participated in the robbery, that he was located in a certain apartment near where the suspects were arrested, that he was armed, and that he might attempt to flee. An attempt to find a magistrate at City Hall to obtain a warrant proved fruitless because it was then about 9:15 p. m.
Two officers went to the address given them and knocked on appellant's door. He opened it a few inches, but attempted to shut it when one officer announced they were police officers. The officers recognized appellant from the description given them by the suspects in custody and the witnesses to the robbery. They pushed the door open and arrested appellant. A loaded pistol was observed on the breakfast bar a few feet from appellant.
One of the officers immediately went into the hallway to the two bedrooms in the apartment to look for the other unapprehended robber or any other person who might be a danger to him or his partner. He looked into the bedrooms through the opened doorways and in appellant's bedroom saw another pistol on top of the nightstand. When he went to get this pistol he observed in an open drawer of the nightstand *936 a lot of change, some of which was in bank rolls, and some personal papers of appellant. A search of appellant revealed he had on him a ten dollar bill and thirty dollar bills.
Appellant unsuccessfully attempted to suppress the pistols and money found on him and in his apartment. He contends that the trial court erred in denying his motion to suppress because no probable cause existed for his arrest and the search of his apartment, no warrant was obtained for his arrest or the search, and that the search of his apartment, even if the arrest was lawful, exceeded the limits of a search incident to an arrest.
It is well established that probable cause to arrest exists where the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime. Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1974); Jones v. State, 493 S.W.2d 933 (Tex.Cr.App. 1973); Brown v. State, 481 S.W.2d 106 (Tex. Cr.App.1972).
Here the arresting officer had the physical description of appellant given by the persons at the scene of the robbery. This description was corroborated by one of the participants in the robbery who was cooperating freely with the police and who also supplied the name of appellant and the address where he was located. When appellant opened his door to the police officer's knock, he was recognized by the arresting officer from the descriptions given by the suspect in custody and the witnesses to the robbery. Under the circumstances, we find the officer had probable cause to arrest appellant.
Further, we find exigent circumstances to justify the failure of the officers to obtain a warrant. It was about 9:00 p. m., only some three hours after the robbery and about two hours after three of the five robbers had been arrested in close proximity to appellant's apartment, when the police were able to ascertain the name and location of appellant from one of the participants in the robbery. The arresting officer had fifteen years of experience and testified that he knew it was unlikely that he could find a magistrate at that time of night to obtain a warrant, but he spent some fifteen minutes in an effort to do so. After he found no magistrates were readily available, he properly acted on the information provided him that appellant was armed and dangerous and that he might attempt to flee.
We also find nothing improper in the seizure of the money from appellant's person and the pistols and coins from appellant's apartment.
The search of appellant, which revealed the forty dollars, was incident to his lawful arrest and therefore reasonable. Myre v. State, 545 S.W.2d 820 (Tex.Cr.App. 1977); Parker v. State, 544 S.W.2d 149 (Tex.Cr.App.1976); Reed v. State, 522 S.W.2d 916 (Tex.Cr.App.1975). The pistol on the breakfast bar was contraband in plain view which may be lawfully seized by an officer who is lawfully on the premises as these officers were. Clark v. State, 548 S.W.2d 888 (Tex.Cr.App.1977); Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.1975); Simpson v. State, 486 S.W.2d 807 (Tex.Cr. App.1972).
The pistol on the nightstand and the change in the open nightstand drawer in appellant's bedroom present a somewhat different situation. Appellant, citing Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), argues that these items were seized in a search which exceeded the limits of a lawful arrest. However, as this court noted in Simpson v. State, supra;
". . . We do not construe the holding in Chimel as absolutely prohibiting searches beyond the area of the arrestee's reach; but rather, we feel that Chimel only prohibits routine searches of the area beyond the arrestee's reach (footnote omitted). It does not prohibit a search beyond that area if the circumstances *937 of the arrest are such that an arresting officer would be justified in believing that an expanded search would be necessary for his protection. . . ."
See also Duncan v. State, 549 S.W.2d 730 (Tex.Cr.App.1977), and Clark v. State, supra.
Here the officers knew that appellant was only the fourth of five robbers who had been arrested and they were fully justified for their own protection to go into the hall and look into the open doorways of the bedrooms to see if the fifth robber, or someone else, was there who might cause them harm. The pistol and the change in the drawer being in plain view were properly seized. Clark v. State, supra; Evans v. State, supra; Simpson v. State, supra.
These grounds of error are therefore overruled.
We have also carefully considered each of the other grounds of error set forth in appellant's pro se brief and find them to be 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/2427767/ | 565 S.W.2d 50 (1978)
Ex parte Henry HENDERSON, Jr.
No. 57115.
Court of Criminal Appeals of Texas, En Banc.
February 15, 1978.
Opinion on Motion for Rehearing April 26, 1978.
*51 Douglas H. Parks, Dallas, for appellant.
Before the court en banc.
Opinion on Appellant's Motion for Rehearing April 26, 1978.
OPINION
DOUGLAS, Judge.
This is an appeal from an order in a habeas corpus proceeding where a reduction of bail pending appeal was sought.
The dissent would hold that Article 44.34, V.A.C.C.P., requires that a transcription of the court reporter's notes must be made a part of the record even though it is not requested by an appellant.[1]
Article 44.34 provides:
"When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals. This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge."
Apparently the dissent would require the trial court to have such a transcription prepared even though a wealthy petitioner did not want or request it.[2]
The cases under Article 44.34 and its predecessors have uniformly held that absent a transcription of the court reporter's notes or a statement of facts a cause will be affirmed. See e. g. Ex parte Naill, 127 S.W. 1031 (Tex.Cr.App.1910); Ex parte Palmer, 136 Tex. Crim. 245, 124 S.W.2d 860 (1939); Ex parte Moore, 318 S.W.2d 667 (Tex.Cr.App.1958); and Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App.1967). There is no reason to change the rule.
The implicit rationale of those cases was that the burden was on an appellant or petitioner to request such notes to be placed in the record or the right to such transcription was waived.
Whether Article 44.34 is mandatory or directory, petitioner may waive compliance with the provision. Article 1.14, V.A. C.C.P., provides as follows:
"The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case."
*52 Even if we be wrong in the construction of Article 44.34, the rule that we follow today has been the procedure for many years. There is little chance, if any, for one to be injured or an injustice be done by the well-established rule. All one has to do to secure the transcription of the court reporter's notes in his case is to ask for it and, if he is able to do so, pay the costs.
Many court reporters are having trouble preparing records in the time prescribed by law. We will not add to that burden when there is no good reason for it.
For the above reasons, the judgment is affirmed.
ONION, Presiding Judge, concurring.
This appeal is from an order entered in a habeas corpus proceeding refusing to lower the bail pending appeal from four felony convictions.
Bail pending appeal was set at $10,000 in each case. On November 22, 1977 appellant filed his application for writ of habeas corpus seeking a reduction of bail. On the same date the district court conducted a hearing on said application, and having heard the evidence presented, entered an order denying the reduction of bail. Notice of appeal was given. Subsequently the record, sans a transcription of the court reporter's notes (statement of facts), was approved by the trial court noting that no objection was made to said record. Thus, the appellate record before us consists of a clerk's transcript without a statement of facts and without briefs by either the appellant or the State. No contention on appeal has been advanced.
It has long been held by this court in appeals from habeas corpus proceedings (including the refusal to reduce bail)[1] that in the absence of a statement of facts nothing is presented for review. In accordance with such cases, this judgment in this appeal should be affirmed.
It was not until the majority opinion on original submission in Ex parte Sims, 565 S.W.2d 45 (Tex.Cr.App. # 55,139, 11/23/77) (now on rehearing), that there was any indication that any other result would be reached. There the majority, although the contention was not raised by either party, interpreted Article 44.34, V.A.C.C.P., as amended as requiring the clerk to prepare a complete record including the statement of facts, whether requested by the appellant or not, and without regard to whether the appellant was indigent or not. The majority held that an appellate record in a habeas corpus proceeding will call for the abatement of the appeal rather than an affirmance.
It is interesting to trace the history of Article 44.34, supra, and its predecessors back to at least 1879.
Article 881, V.A.C.C.P. (1879), provided:
"When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a transcript of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the court of appeals for revision. This transcript, when the proceeding takes place before a court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation the transcript may be prepared by any person under the direction of the judge and certified by such judge."
Said Article 881 became Article 916, V.A. C.C.P., in 1895 and later said Article 916 became Article 950, V.A.C.C.P., in 1911 and said Article 950 became Article 857, V.A.C. C.P., in 1925, all without change.
In 1965 said Article 857 became Article 44.34, V.A.C.C.P., with minor changes. The word "review" was substituted for the last word "revision" in the first sentence, and the word "record" was substituted for the word "transcript" elsewhere in the statute.
*53 In Ex parte Watson, 455 S.W.2d 300 (Tex. Cr.App.1970), it was held that Article 44.34, supra, controls the appellate procedure in habeas corpus cases rather than Article 40.09, V.A.C.C.P., relating to appeals from convictions in criminal cases.[2] It became clear from Watson that there were no time limits for sending up the appellate record in such cases. Then in 1973 Article 44.34, supra, was amended to provide for such time limitation and an additional sentence was added. Such statute now reads:
"When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals. This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge." Acts 1973, 63rd Leg., p. 1270, ch. 465, § 1 (1973 amendment is underlined above.)
It is observed that this statute has undergone little change in almost one hundred years and has never prescribed with much detail the appellate procedure to be followed in appeals from habeas corpus proceedings.
As early as 1885 it was held that the rules governing the transmission of transcripts in other criminal cases do not govern in habeas corpus appeals. See Ex parte Barrier, 17 White & W. 585 (1885); Ex parte Kramer, 19 White & W. 123 (1885).[3]
Habeas corpus appeals determined when the various statutes described above were in effect clearly established on the years that in the absence of statement of facts in appeal in habeas corpus proceedings nothing is presented for review, and it is presumed that the judgment entered in the trial court is correct. See, e. g., Ex parte Carrington, 129 Tex. Crim. 613, 91 S.W.2d 345 (1936); Ex parte Horn, 97 S.W.2d 698 (Tex.Cr.App.1936); Ex parte Brady, 137 Tex. Crim. 609, 132 S.W.2d 592 (1939); Ex parte Ambrose, 145 Tex. Crim. 582, 170 S.W.2d 731 (1943); Ex parte Grubman, 146 Tex. Crim. 500, 176 S.W.2d 335 (1943); Ex parte Canavan, 147 Tex. Crim. 493, 182 S.W.2d 818 (1944); Ex parte Stone, 152 Tex. Crim. 351, 214 S.W.2d 127 (1948); Ex parte Toalson, 252 S.W.2d 161 (Tex.Cr.App. 1952); Ex parte Freed, 254 S.W.2d 792 (Tex.Cr.App.1953); Ex parte Taylor, 259 S.W.2d 222 (Tex.Cr.App.1953), cert. den., Taylor v. Moore, 350 U.S. 997, 76 S. Ct. 548, 100 L. Ed. 861; Ex parte Lewis, 263 S.W.2d 557 (Tex.Cr.App.1954); Ex parte Chapa, 287 S.W.2d 178 (Tex.Cr.App.1956); Ex parte Lawhon, 295 S.W.2d 660 (Tex.Cr.App.1956). See also Ex parte Adams, 13 S.W.2d 842 (Tex.Cr.App.1929); Ex parte Palmer, 136 Tex. Crim. 245, 124 S.W.2d 860 (1939); Ex parte Combs, 132 Tex. Crim. 500, 105 S.W.2d 1096 (1937); Ex parte Slayden, 238 S.W.2d 706 (Tex.Cr.App.1951); Ex parte Hopkins, 368 S.W.2d 223 (Tex.Cr.App.1963); Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App. 1967). And see cases cited in footnote # 1.
Implicit in these holdings is the requirement that it is the appellant's duty and responsibility to secure the statement of *54 facts for inclusion in the appellate record, and his failure to uphold his responsibility will be held against him. It is true that many of these decisions do not always mention the applicable statute and do not expressly spell out the responsibility of the appellant. However, each of the cases cited involved habeas corpus appeals,[4] while the various statutes described above were in effect governing appeals in habeas corpus proceedings.
In 53 Tex.Jur.2d, Statutes, § 192, pp. 294-298, it is written:
"Where a statute that has been construed, either by a court of last resort or by executive officers, is reenacted without any substantial change of verbiage, it will continue to receive the same construction. This settled rule applies whether the old act is merely amended or is incorporated in a revision; and it applies with particular force in the construction of a statute that has been repeatedly reenacted without change. On the other hand, the rule does not apply where substantial changes are made in the new law; and it may be doubted whether it applies where the existence and meaning of the reenacted statute are dependent on another written law.
"When a statute is reenacted without material change, it is generally presumed that the legislature knew and adopted or approved the interpretation placed on the original act, and intended that the new enactment should receive the same construction as the old one. Accordingly, the construction of the old act is regarded as a part of the new, and a different interpretation will be given only for impelling and cogent reasons."
Using this rule of statutory construction, I would interpret said Article 44.34 as it has been consistently interpreted in the past. I cannot conclude that the Legislature intended a different construction.
Further, and most importantly, attention is called to Article 2324, V.A.C.S., relating to the duties of a court reporter, which provides in part:
"... When any party to any suit reported by such reporter shall desire a transcript of the evidence in said suit, said party may apply for same by written demand, and the reporter shall make up such transcript and shall receive as compensation therefor a reasonable amount...." (Acts 1975, 64th Leg., p. 826, ch. 319, § 1.) (Emphasis added.)
There were the same or similar provisions in the forerunners of this statute. See Acts 1955, 54th Leg., p. 1033, ch. 390; Acts 1925, 39th Leg., p. 670, ch. 202 (Article 2238, V.A.C.S.); Acts 1911, 32nd Leg., p. 264, ch. 119 (Articles 1923, 1924, V.A.C.S.). One of these statutes was in effect when most of the cases cited above were decided and should be considered in interpreting the meaning of those decisions.
I am fully aware, of course, of the current provisions of Article 11.07, V.A.C.C.P., as amended 1977 (Acts 1977, 65th Leg., p. 1974, ch. 789), dealing with the specialized procedure dealing with post-conviction habeas corpus proceedings in felony cases. It is provided in § 2(d) that if the convicting court decides that there are controverted, previously unresolved facts which are material to the legality of the applicant's confinement the court may order a hearing. Said subsection (d) then provides in part:
"... It shall be the duty of the reporter who is designated to transcribe a hearing held pursuant to this article to prepare a transcript within 15 days of its conclusion. After the convicting court makes findings of fact or approves the findings of the person designated to make them, the clerk of the convicting court shall immediately transmit to the Court of Criminal Appeals, under one cover, the petition, any answers filed, any motions filed, transcripts of all depositions *55 and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues of fact."
This statute's immediate forerunner (Acts 1973, 63rd Leg., p. 1271, ch. 465) had a similar provision as to the duty of the court reporter. However, anyone who has followed the history of former Article 119, V.A.C.C.P. 1925, until it became Article 11.07, V.A.C.C.P. (Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722) and most importantly, the amendments that have been made to said Article 11.07 (Acts 1967, 60th Leg., p. 1734, ch. 659; Acts 1973, 63rd Leg., p. 1271, ch. 465; Acts 1977, 65th Leg., p. 1974, ch. 789), knows that the procedure set forth is an exclusive procedure (§ 3 of the Article) that is limited to post-conviction habeas corpus proceedings in felony cases where unlike other habeas corpus proceedings the writ is expressibly made returnable to the Court of Criminal Appeals.[5]
Nothing in Article 11.07, supra, should be construed as calling for a different interpretation that has long been given Article 44.34, supra.
The construction urged by the majority in Ex parte Sims would place an almost impossible duty upon the clerk of the court to include in the appellate record of a habeas corpus matter the statement of facts regardless of whether the same has been requested or not, or whether the appellant is indigent or not, particularly when the clerk had no control, statutorily or otherwise, over the court reporter, who is an appointee of the trial court.
Further many, many general habeas corpus appeals are taken for delay only and there is no interest in a statement of facts.
I would affirm the judgment entered in this case.
ODOM, Judge, dissenting.
The majority now hold that the appellant in a habeas corpus appeal is responsible for securing a transcription of the court reporter's notes for inclusion in the record on appeal. This they do despite the plain language of Art. 44.34, V.A.C.C.P., which governs habeas corpus appeals. It is not a prerogative of this Court to ignore the clear mandate of the Legislature.
I adhere to the position taken by the majority on original submission in Ex parte Sims, Tex.Cr.App., 565 S.W.2d 45 (No. 55139). The majority fall short of expressly saying that they are relying on the procedures for preparing an appeal from a conviction under the provisions of Art. 40.09, V.A.C.C.P., but it is nevertheless clear that this is precisely what is being done without acknowledging the fact. See the dissenting opinion on original submission in Ex parte Sims, supra. This is in disregard of the rule that a special statute (Art. 44.34, supra) controls over a general statute in the event of conflict. In Ex parte Watson, 455 S.W.2d 300, this Court, in a unanimous opinion authored by today's voice for the majority, held that Article 44.34, supra, controlled over the provisions of Article 40.09, supra. The appellant in that case argued he was entitled to the time authorized by Art. 40.09 for filing the transcription of the court reporter's notes and for filing briefs. Judge Douglas wrote:
"Article 44.34, supra, applies. This article as titled `Appeal in habeas corpus' shows the intent of the Legislature that it should apply in such proceedings. No definite time has been provided for preparation for forwarding the record for review. Judge Brown did not err in ordering the record sent to this Court some six weeks after its completion."
Of course, Article 44.34 has since been amended to require the record be sent to this Court within fifteen days of judgment, as pointed out in the majority opinion on original submission in Sims, supra. Such *56 amendment further evidences the intent of the Legislature that habeas corpus cases be speedily heard and decided.[1] The majority advance no reason for ignoring the clear mandate of the Legislature.
Assuming arguendo, however, that the majority are correct that the burden is on the appellant to request and secure a transcription of the court reporter's notes and deliver it to the clerk for inclusion in the record on appeal, as is the practice under Art. 40.09, supra, this appeal should nevertheless be abated.
The trial court denied appellant's motion to reduce bail and notice of appeal was given on November 22, 1977, and the record was approved by the trial judge fifteen days later on December 7, 1977. Appellant was not allowed sixty days to designate matters for inclusion in the record as is the practice under Art. 40.09(3), supra. How can the majority fault appellant for not putting the transcription in the record when he was not given time to do so? Appellant was not given notice of completion of the record before its approval as is also the practice under Art. 40.09(7), supra, and thus was denied the opportunity to object to the omission of the transcription from the record on appeal. How can the majority hold the absence of a transcription against appellant when he was not given an opportunity to examine the appellate record and object to this defect? If the burden is on the appellant to secure the transcription and put it in the record as concluded by the majority, then this appeal should be abated for failure to accord appellant the rights that arise under the other provisions of Art. 40.09, supra, and the opportunity to present a full appellate record to this Court under the practice set out in that article.
The majority have created a catch-22 where appellant is given an impossible task and then faulted for not doing the impossible. Habeas corpus and its appeal were designed by the legislature under the mandate of Article I, Sec. 12, Texas Constitution, to be speedy. Applying to habeas corpus appeals the practice urged by the majority and its fair consequences is contrary to the legislative scheme, frustrates the constitutionally-founded purpose of speedy disposition, and denies this appellant the opportunity to have his case heard by this Court. This plain fact was acknowledged by Judge Douglas in Watson, supra:
"If we were to hold that the provisions for appeal after a trial and a conviction in a criminal case under Article 40.09, supra, should apply in habeas corpus proceedings, the State could delay the final decision for so long a time that our constitutional right to the habeas corpus relief could be suspended and made meaningless. According to appellant's contention and computation the minimum time for such appeal to reach this Court would be 150 days after the giving of the notice of appeal."
Why does Judge Douglas disavow today what he acknowledged in Watson, and why do the majority overrule that case sub silentio? The adverse impact on the criminal justice system feared by the majority from following the legislative mandate in Art. 44.34 is inconsequential when contrasted with the impact of ignoring it, which was so well described in the words of Judge Douglas quoted above.
I respectfully dissent.
ROBERTS and PHILLIPS, JJ., join this opinion.
OPINION ON APPELLANT'S MOTION FOR REHEARING
Before the court en banc.
ODOM, Judge.
This is an appeal from an order in a habeas corpus proceeding denying a reduction of bail pending appeal.
On original submission the judgment was affirmed because the record did not include *57 a transcription of the court reporter's notes. By motion for rehearing it has been made to appear that appellant did secure a transcript of the court reporter's notes and did present that material to the clerk for inclusion in the record on appeal, yet the clerk failed to enclose it when the record was sent to this Court. The complete record is now before the Court and will be considered.
The record reflects appellant was convicted by a jury of four offenses joined for trial. The indictments alleged the same date for the commission of the three robberies and one aggravated assault on the arresting police officer. Punishment was ten years in each, to run concurrently. Bail was set at $10,000 in each case.
Appellant was the only witness to testify at the hearing on the application for a reduction of bail. He testified regarding his family ties to the community, his work history and time in the service, and absence of a prior criminal record. He also testified that his family members are willing to help him make bail, and that $2500 per case, or a total of $10,000, is the amount they would be able to make.
In view of the fact that appellant was found guilty in four cases, we do not consider $40,000 bail to be excessive.
We find no abuse of discretion and deny relief.
NOTES
[1] See Ex parte Sims, Tex.Cr.App., 565 S.W.2d 45 (No. 55,139, decided this day on motion for rehearing which overrules the original holding and holds contrary to the contention of the dissent).
[2] Upon request, an indigent defendant will be furnished a transcription of the court reporter's notes without cost. If one is not indigent, a transcription of such notes will be furnished upon his request, but he must pay for it. Under the theory of the dissent, who would pay for such a record if a wealthy defendant did not request it?
[1] Ex parte Clay, 51 S.W. 241 (Tex.Cr.App. 1899); Ex parte Naill, 127 S.W. 1031 (Tex.Cr. App.1910); Ex parte Fleming, 97 Tex. Crim. 304, 261 S.W. 1037 (1924); Ex parte Marteliano, 155 Tex. Crim. 221, 233 S.W.2d 504 (1950); Ex parte Mauck, 158 Tex. Crim. 200, 254 S.W.2d 128 (1953). See also 19 Tex. Digest, Habeas Corpus, § 113(9)(k); Ex parte Teague, 145 S.W. 620 (Tex.Cr.App.1912); Ex parte Northern, 63 Tex. Crim. 275, 140 S.W. 95 (1911).
[2] To the same effect are Ex parte Buel, 468 S.W.2d 385 (Tex.Cr.App.1971); Ex parte Starks, 464 S.W.2d 837 (Tex.Cr.App.1971); Ex parte Schoen, 460 S.W.2d 923 (Tex.Cr.App. 1970); Ex parte Bunch, 519 S.W.2d 653 (Tex. Cr.App.1975).
[3] These holdings do not differ from Ex parte Watson, supra, and cases following Watson. They appear contrary to Ex parte James, 147 Tex. Crim. 430, 181 S.W.2d 83 (1944), holding that on appeal from refusal of discharge under writ of habeas corpus, notice of appeal having been given to the Court of Criminal Appeals, rules governing appeals in criminal cases would control. See and cf. Ex parte Martinez, 297 S.W.2d 842 (Tex.Cr.App.1957); Ex parte Hill, 159 Tex. Crim. 238, 262 S.W.2d 507 (1953); Ex parte Denson, 165 Tex. Crim. 420, 307 S.W.2d 952 (1957).
[4] These holdings are in accord with decisions in civil habeas corpus appeals, see e. g., Ex parte Gamez, 148 Tex. 562, 228 S.W.2d 133 (1950); Lazaros v. State, 228 S.W.2d 972 (Tex.Civ.App. 1950Dallas), and in the normal appellate procedure in appeals from criminal convictions. See Article 40.09, § 5, V.A.C.C.P.
[5] These amendments to said Article 11.07 were also designed to encourage and facilitate evidentiary hearings in state courts in post-conviction habeas corpus proceedings so that state courts could retain control over such proceedings and to relieve federal district courts from having to always conduct such evidentiary hearings where state inmates brought federal habeas corpus proceedings.
[1] Article I, Section 12, of the Texas Constitution provides:
"The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual." (Emphasis added.) See also Art. 44.36, V.A.C.C.P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1277825/ | 217 Va. 763 (1977)
ALLIED PRODUCTIONS, INC., ET AL.
v.
ROY H. DUESTERDICK, ETC., ET AL.
Record No. 751444.
Supreme Court of Virginia.
March 4, 1977.
Present, All the Justices.
When a client has suffered a judgment for money damages as the proximate result of his lawyer's negligence such judgment constitutes actual damages recoverable in a suit for legal malpractice only to the extent such judgment has been paid. Since motion for judgment failed to allege such actual damages it was not error to sustain demurrer.
Error to a judgment of the Circuit Court of Fairfax County. Hon. Thomas J. Middleton, judge presiding.
Edward D. Barnes (Bremner, Byrne, Baber & Janus, on briefs), for plaintiffs in error.
Philip J. Walsh (James C. Gregg; Randell Hunt Norton; Macleay, Lynch, Bernhard & Gregg, on brief), for defendants in error.
COCHRAN
COCHRAN, J., delivered the opinion of the court.
This writ of error was granted to test the sufficiency of a motion for judgment seeking damages for legal malpractice.
Allied Productions, Inc., a Georgia corporation, Howard E. Caldwell, Martha Caldwell, and Charles D. Wheeler (collectively, the client) filed a motion for judgment against Roy H. Duesterdick, individually, and Richard N. Baylinson, Roy H. Duesterdick, and Morton Kudysh, t/a Baylinson, Duesterdick & Kudysh, a partnership engaged in the practice of law (collectively, the attorney). The motion alleged that, by reason of the attorney's negligence in failing to defend a suit sounding in fraud, the client had suffered a default judgment upon a jury's *764 verdict awarding compensatory damages of $10,000 and punitive damages of $200,000. The motion sought $500,000 in damages based upon several claims, viz., the principal and interest of the default judgment, attorneys' fees, court costs, mental anguish, inconvenience, grief, and embarrassment. The motion did not allege that any part of the default judgment had been paid. The attorney demurred, and for purposes of the demurrer, the parties stipulated that no payment had been made and that the client's claim based upon injuries other than the default judgment would be withdrawn without prejudice.
By final order entered August 7, 1975, the trial court ruled that "since the plaintiffs have not paid any portion of the judgment against them, the damages, if any, are too remote, speculative and contingent" and that "The Motion for Judgment fails to allege actual damages". Upon these rulings, the demurrer was sustained and the case dismissed.
Although this Court decided the first legal malpractice case reported in the United States, Stephens White, 2 Va. (2 Wash.) 203 (1796), we have not passed upon the precise issue presented here. Nevertheless, we have followed the general rule that in order to recover damages for the negligence of his attorney the client must prove the extent of the damages. Thus, in Staples' Ex'ors Staples, 85 Va. 76, 85, 7 S.E. 199, 203 (1888), we said:
}"[In] cases of negligence, the extent of the damages sustained by the complainant must be affirmatively shown; for the attorney is only liable for the actual injury his client has received, and not necessarily for the nominal amount of the demands for collection. 2 Greenl. Ev., sec. 146. Accordingly, when a debt is alleged to have been lost by the attorney's negligence, it must be shown that it was a subsisting debt, and that the debtor was solvent." (Citations omitted.)
This case was cited as being in accord with the weight of authority in Maryland Casualty Co. Price, 231 F. 397 (4th Cir. 1916), where it was said at 401-03:
{"In a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) The attorney's employment; (2) his neglect of a reasonable duty; and (3) that *765 such negligence resulted in and was the proximate cause of loss to the client. . . ."
* * *
{". . . The rule established by these cases is to the effect that suits against attorneys for negligence are governed by the same principles as apply in other negligent actions. If an attorney, in disregard of his duty, neglects to appear in a suit against his client, with the result that a default judgment is taken, it does not follow that the client has suffered damage, because the judgment may be entirely just, and one that would have been rendered notwithstanding the efforts of the attorney to prevent it. It is said that there is a difference between the case of an attorney who fails to do anything for his client, and one who makes an inexcusable mistake in attempting to comply with instructions; but we do not perceive any basis in principle for such a distinction. In either case the burden is upon the client to prove the damages he has suffered."
The court affirmed the ruling of the trial court which sustained the demurrer of the attorneys in an action against them initiated by the client to recover the amount of a default judgment entered against and paid by the client because of the alleged failure of the attorneys to defend a suit. The basis of the ruling was the failure of the client to allege that it had a meritorious defense to the suit, which the attorney negligently failed to interpose, and that the judgment would not have been recovered against the client or that such judgment would have been for a lesser amount. To the same effect see Feldesman McGovern, 44 Cal. App. 566, 568, 112 P.2d 645, 647 (1941), and cases cited therein.
In Weiner Moreno, 271 So. 2d 217, 219 (Fla. App. 1973), after stating that the rule established by Price, supra, had been adopted in legal malpractice cases in approximately 45 states, the Florida court approved the rule requiring, as its third prerequisite, proof of proximate cause of loss to the client. See also Wooddy Mudd, 258 Md. 234, 265 A.2d 458 (1970); Annot., 45 A.L.R. 2d 5; Annot., 45 A.L.R. 2d 62.
It has been said that the better reasoned cases support an award of damages in the full amount of the judgment suffered *766 and paid by the client where he can prove that a timely appeal, which the attorney negligently failed to file, would have resulted in a reversal of the judgment and entry of judgment in his favor as a matter of law. Better Homes, Inc. Rodgers, 195 F. Supp. 93, 97 (N.D. W. Va. 1961).
In our consideration of the present case we are guided by the analogy we find in the rules governing other types of cases. We have held that a right of contribution arises only when one tortfeasor has paid or settled a claim for which other wrongdoers are also liable. Bartlett Recapping, Inc., 207 Va. 789, 793, 153 S.E.2d 193, 196 (1967). We have also held that there can be no recovery on an indemnity obligation where there has been no actual loss or damage. American National Bank Ames, 169 Va. 711, 748, 194 S.E. 784, 797 (1938). We see no reason to formulate an exception to this principle that would apply only to attorneys who are defendants in legal malpractice actions.
Insofar as the client in the present case claims damages on account of the default judgment it is in the nature of a claim for indemnity in which the client seeks to have the attorney save him harmless from the debt owed to the judgment-creditor. But until the client has made a payment on that debt he has suffered no actual loss or damage.
Accordingly, we hold that when a client has suffered a judgment for money damages as the proximate result of his lawyer's negligence such judgment constitutes actual damages recoverable in a suit for legal malpractice only to the extent such judgment has been paid. Here, the motion for judgment failed to allege such actual damages. It failed, therefore, to state a cause of action, and the trial court correctly sustained the demurrer.
Affirmed.
POFF
POFF, J., dissenting.
I cannot join in this opinion.
In my view, the analogy the majority find in the rules concerning a tort-feasor's right to contribution from a joint tort-feasor and the right of an indemnitee against the indemnitor is tenuous at best. The cases for which those rules *767 are fashioned are wholly unlike the case at bar. Those cases concern essentially the rights and obligations of the immediate litigants; a legal malpractice case involves standards, societal values, and public policies with infinitely broader impact. In unique ways, the quality of the practice of the legal profession affects the welfare of the body politic. The relationship between a lawyer and his client is a fiduciary relationship, one which commands the highest fidelity to a most solemn trust, for the lawyer is the expert and the client is utterly dependent upon his knowledge, his skill, and his honor. Any breach of a lawyer's fiduciary duty injures his client, demeans the integrity of the profession, and impairs public confidence in our system of justice. Lawyers are officers of the courts, subject to the supervisory powers of the courts. In the exercise of those powers, courts have a responsibility to the client, to the prefession, and to the public at large to make and enforce rules which promote excellence in the practice of the law and energize the distinctive rights and obligations of the lawyer-client relationship. Those rules need not be restricted by rules made for other cases.
I am anxious about the precedental effect the rule the majority adopt may have. If the client has no cause of action until he has paid the judgment against him, then the larger the judgment, the greater the client's burden and the lawyer's impunity; the greater the injury wrongfully inflicted, the less the liability of the wrongdoer. The rule would seem to penalize a lawyer for his negligence when it costs his client a modest judgment but grant him immunity when his negligence results in a judgment too large for the client to pay. Furthermore, when the judgment forces the client into a state of insolvency, the rule may prejudice not only the client but his general creditors as well. Finally, the rule the majority adopt will force the client to choose whether to postpone suit against his negligent lawyer until he has paid his judgment-creditor in full or to institute a separate suit against his lawyer for each partial payment he makes. How the latter course might be affected by the doctrine of res judicata one can only wonder.
I would adopt a different rule and confine its application to legal malpractice cases such as the one at bar. The rule I favor would hold that a client's allegation of a money judgment suffered as the proximate result of his lawyer's negligence *768 constitutes an allegation of actual damages sufficient against a demurrer.
There is little remote, speculative, or contingent about a money judgment. Indeed, it is a legal creature of singular dignity. Such a judgment calls into existence what did not exist before, viz., a liquidated debt. Except for jurisdictional defect, that judgment and the debt it creates cannot be collaterally attacked and is actionable in every state. The recorded judgment constitutes a continuing lien (securing the debt and the interest as it accrues) on the debtor's assets (presently owned and later acquired), a lien that is enforceable by public sale. Subject to the statute of limitations, the debt survives the debtor's death and may be revived against his personal representative. Code | 8-396 (Cum. Supp. 1976). Some judgments, such as that suffered by the client here, survive bankruptcy. 11 U.S.C. | 35.
Opposing the rule I favor, the attorney argues that it might enable a client who had won a verdict against his lawyer to enjoy a "windfall". He reasons that the client might collect from his lawyer and, for one reason or another, fail to pay his own judgment-creditor. This argument ignores the remedies available to a judgment-creditor. Moreover, any danger of a "windfall" could be minimized by appropriate instructions on remand.
Applying the rule I favor, I would reverse the judgment, restore the motion for judgment to the docket, permit the client upon request to reinstate the several claims which, by stipulation, were withdrawn without prejudice, and grant the client an opportunity to prove the elements of the cause of action he has stated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1312484/ | 204 Mich. App. 472 (1994)
517 N.W.2d 239
PEOPLE
v.
WOODS
Docket No. 158749.
Michigan Court of Appeals.
Submitted March 8, 1994, at Grand Rapids.
Decided April 5, 1994, at 9:05 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey C. Middleton, Prosecuting Attorney, and Charles D. Hackney, Assistant Attorney General, for the people.
State Appellate Defender (by Anne Yantus), for the defendant on appeal.
Before: SAWYER, P.J., and FITZGERALD and D.A. ROBERSON,[*] JJ.
PER CURIAM.
Pursuant to a plea agreement, defendant pleaded nolo contendere to a charge of third-degree criminal sexual conduct, MCL 750.520d(1)(a); MSA 28.788(4)(1)(a), and was sentenced to a prison term of seven to fifteen years. Defendant appeals as of right, claiming that the trial court improperly scored a prior record variable (PRV) and an offense variable (OV) and that his sentence is disproportionate. We affirm.
Defendant's argument that the trial court erred in scoring a prior conviction of operating a vehicle while under the influence of intoxicating liquor, third offense, as a prior low-severity felony conviction under PRV 2 was addressed and rejected by this Court in People v Eaves, 203 Mich. App. 356, 360; 512 NW2d 1 (1994).
*474 Defendant also contends that the trial court erred in scoring twenty-five points for ov 2 because the pregnancy resulting from the sexual assault and the subsequent abortion do not constitute "bodily injury." We disagree.
Offense Variable 2 instructs the trial court to score twenty-five points when the victim suffers bodily injury. The Sentencing Guidelines Manual does not define the term "bodily injury" for purposes of ov 2, and neither this Court nor our Supreme Court has had the occasion to interpret the meaning of bodily injury in the context presented by the facts of this case.
Under MCL 750.520a(j); MSA 28.788(1)(j), "personal injury" is defined as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ." Although defendant correctly observes that "bodily injury" and "pregnancy" are listed separately under this definition, the two are not mutually exclusive. Indeed, "disfigurement" or "loss or impairment of a sexual or reproductive organ" would constitute "bodily injury" within the meaning of ov 2, even though all three constitute "personal injury" under the statute.
Looking to other jurisdictions for guidance, we find the language in People v Sargent, 86 Cal App 3d 148, 151-152; 150 Cal Rptr 113 (1978), persuasive:
A pregnancy resulting from a rape (and, in this case, a resulting abortion) are not injuries necessarily incidental to an act of rape. The bodily injury involved in a pregnancy (and, in this case, a resulting abortion) are significant and substantial. Pregnancy cannot be termed a trivial, insignificant matter. It amounts to significant and substantial bodily injury or damage. It involves more than the psychological and emotional distress necessarily *475 incident to a rape which psychological or emotional distress the authors of [People v] Caudillo [21 Cal 3d 562; 146 Cal Rptr 859; 580 P2d 274 (1978)] deemed not to constitute significant or substantial physical injury. Major physical changes begin to take place at the time of pregnancy. It involves a significant bodily impairment primarily affecting a woman's health and well being. It is all the more devastating when imposed on a woman by forcible rape.
Pregnancy can have one of three results childbirth, abortion or miscarriage. Childbirth is an agonizing experience. An abortion by whatever method used constitutes a severe intrusion into a woman's body. A miscarriage speaks for itself. Just what the dimensions of a "normal" rape might be, we leave to the authors of Caudillo. We merely find that the facts in this case, i.e., a pregnancy followed by an abortion, clearly support a finding of great bodily injury.
In this case, the trial court's decision to score the pregnancy and abortion as bodily injury nearly mirrored that of the court in Sargent. Under these circumstances, we conclude that the trial court properly scored twenty-five points under ov 2 for the pregnancy and abortion suffered by the victim as a result of defendant's sexual assault.
Lastly, defendant's sentence, which is within the minimum recommended guidelines' range, is proportionate to the seriousness of the circumstances surrounding the offense and the offender. People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990).
Affirmed.
NOTES
[*] Recorder's Court judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1371532/ | 966 F. Supp. 1143 (1997)
FALGOUT BROTHERS, INC.. Plaintiff,
v.
S/V PANGAEA, in rem, Defendant.
Civil Action No. 96-0805-RV-C.
United States District Court, S.D. Alabama, Southern Division.
May 6, 1997.
*1144 William W. Moore, Mobile, AL, James O.M. Womack, New Orleans, LA, for Plaintiff.
David J. Bederman, Professor University of Virginia School of Law, Charlottesville, VA, for Defendant.
ORDER
VOLLMER, District Judge.
Presently before the court is plaintiff's complaint for a salvor's award (Doc. 1) and motion for entry of default judgment (Doc. 13). The crew of one of plaintiff's tug boats, while towing a barge from Puerto Rico to the port of Mobile, discovered a derelict sailboat in the open waters between Florida and Cuba. The sailboat, S/V Pangaea, was brought to the port of Mobile. To collect on its maritime lien arising out of this salvage of S/V Pangaea, plaintiff instituted the present action and had this court place the vessel under in rem arrest. On August 27, 1996, the court ordered that notice of the vessel's arrest and the present civil action be published three times a week for two consecutive weeks in The Mobile Register. See Order of Publication (Doc. 8). In said Order, the court directed that any person having an interest in S/V Pangaea file a notice of claim by September 23, 1996. To this day, no person or entity has filed a claim against the vessel.
On October 11, 1996, plaintiff filed a motion for entry of default judgment (Doc. 13). Therein, plaintiff requests that the court enter a default judgment in favor of plaintiff, declare plaintiff's salvage lien to be a priority lien, and instruct the United States Marshal to execute and deliver a Marshal's bill of sale transferring the vessel to the plaintiff free and clear of all other liens or claims in satisfaction of its maritime lien. Plaintiff requests that its receipt of the bill of sale be conditioned upon its payment of all costs incurred by the Marshal and the substitute *1145 custodian fees.[1] In short, plaintiff seeks an award of outright title to the vessel. Though never expressly stating so in its filings With the court, plaintiff relies on the law of finds, and not the law of salvage, in support of its claim.
After examining the law of salvage and finds, the court declined to grant the motion. Instead, plaintiff was ordered to file an expert affidavit as to the value of the vessel and the value of plaintiff's salvage efforts and to submit a brief addressing the issue of the right of crew members to share in any salvage award the court might make. Plaintiff was also advised "to consider whether an award of all or part of the proceeds from sale of the S/V Pangaea (made available pursuant to enforcement of the salvage lien) would be more appropriate than an award of outright title given the particular facts in this case." Order of November 6, 1996 (Doc. 16).
The court has determined that plaintiff's motion for entry of default judgment (Doc. 13) is now due to be granted. However, the court will not award the relief requested, namely the investiture of title to Falgout Brothers, Inc. As indicated in previous orders, the court holds that the law of salvage, not the law of finds, must be applied in this case. Application of the law of finds, which vests title in the subject res to the finder, is reserved for those rare cases where the owner is deemed to have abandoned his claim of title to the res. See Thomas J. Schoenbaum, Admiralty & Maritime Law 798 (1987). Proving abandonment is a difficult task. A finder must show that the owner voluntarily intended to divest himself of title. The No. 105/Belcher Oil Co. v. Griffin, 97 F.2d 425, 426 (5th Cir.1938). Or, in the case of articles recovered from ancient shipwrecks on the sea floor where no owner appears in court to claim them, abandonment may be inferred from those circumstances. Columbus-America Discovery Group v. Atlantic Mutual Ins. Co., 974 F.2d 450, 461(4th Cir.1992), cert. denied, 507 U.S. 1000, 113 S. Ct. 1625, 123 L. Ed. 2d 183 (1993). Abandonment must be proven by clear and convincing evidence, such as the owner's express declaration abandoning title. Id., The application of the law of salvage is favored over application of the law of finds. Id. at 460-61. See generally Hener v. United States, 525 F. Supp. 350, 355-57 (S.D.N.Y.1981).
Falgout Brothers, Inc. has not demonstrated that the owner of S/V Pangaea voluntarily and intentionally abandoned title. Absent such evidence, the court is obliged to apply the law of salvage. Without a doubt, Falgout has satisfied the elements of a valid salvage claim.[2] However, traditional salvage law, which this court chooses to follow, does not authorize a court of admiralty to vest title of a derelict vessel with the salvor. See Platoro Limited, Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 903-04 (5th Cir.1983), cert. denied, 464 U.S. 818, 104 S. Ct. 77, 78 L. Ed. 2d 89 (1983). Instead, plaintiff is entitled to a monetary sum as reward for its provision of salvage services. In deciding the amount to award for salvages services, the following factors are considered: (1) the labor expended by the salvors in rendering the salvage service, (2) the promptitude, skill, and energy displayed in rendering the service and saving the property, (3) the value of the property employed by the salvors in rendering the service and the danger to which such property was exposed, (4) the risk incurred by the salvors in securing the property from the impending peril, (5) the value of the property saved, and (6) the degree of danger from which the property *1146 was rescued. The Blackwall, 10 Wall. 1, 77 U.S. 1, 19 L. Ed. 870 (1869). In a case such as this where no one has made an appearance as owner of the derelict vessel, ordering that the vessel be sold and awarding one hundred percent of the proceeds as a salvage award is justified. See Columbus-America Discovery Group, 974 F.2d at 459; Dominguez v. The Schooner Brindicate, 204 F. Supp. 817 (D.P.R.1962). The court has decided to do just that.[3]
What remains to be determined, however, is: (1) who should receive a salvage award and (2) how much should be awarded to each recipient. No member of the crew[4] of plaintiff's tug which salvaged the S/V Pangaea has filed a salvor's claim. Nevertheless, such crew members who contributed to the salvage of the sailboat are still entitled to a salvor's award. See 46 U.S.C. § 10317 (1994); The Steamer Adirondack, 5 F. 213 (S.D.N.Y.1880). The apportionment of a salvage award among co-salvors here, the crew of the tug and Falgout Brothers, Inc. as owner of the tug is based on the relative participation and risk of each. Schoenbaum, supra, at 792.
The court has decided to follow the suggestion of amicus curiae Professor David Bederman by awarding the entire proceeds of the sale to plaintiff Falgout Brothers, Inc. on the condition that Falgout make salvage payments to crew members in amounts determined by the court. This course of action is quicker and more efficient than awarding plaintiff its due and holding the remainder of the proceeds in the court's registry until crew members file their individual claims.[5] To implement this decision, the court will need to know the name, rank, and extent of risk and participation of each crew member who assisted in the salvage of S/V Pangaea. Plaintiff is hereby ORDERED to provided this information to the court via appropriate affidavit(s) on or before Tuesday, May 20, 1997.
Furthermore, it is hereby ORDERED that the United States Marshal of the Southern District of Alabama SELL the S/V Pangaea at a marshal's sale to be conducted forthwith under such conditions he deems fair and reasonable. The proceeds of said sale, minus fees and costs owing to the Marshal and the substitute custodian, shall be deposited in the court's registry and shall remain there until further order of the court.
NOTES
[1] In the Order of August 16, 1996 (Doc. 6), upon the motion of plaintiff, Turner Marine Supply, Inc. was appointed substitute custodian of S/V Pangaea. The vessel was arrested at Turner Marine Supply, Inc's facilities in Mobile, Alabama.
[2] To be eligible for a salvage award, a claimant must show that the vessel was in maritime peril from which it could not have been rescued without the salvor's assistance, that the act of salvage was a voluntary act unrelated to a preexisting official or contractual duty to the vessel owner, and that there was some degree of success in saving the vessel. E.g., The Sabine, 101 U.S. 384, 25 L. Ed. 982 (1879). "The peril to which a vessel is subjected need not be one of imminent danger of destruction or damage. Rather, it is sufficient that a vessel be subject to potential danger of damage or destruction to make her subject to salvage services." Lancaster v. Smith, 330 F. Supp. 65, 67 (S.D.Ala.1971) (citing Fort Myers Shell & Dredging Co. v. Barge NBC 512, 404 F.2d 137 (5th Cir.1968)).
[3] The decision to award one hundred percent to the salvors is also based on the fact that the costs plaintiff incurred in salvaging the S/V Pangaea exceed the book value of the vessel. Willey Aff. of February 17, 1997 at 2.
[4] As used in this order, the word "crew" refers to the master or captain of the tug as well as subordinate deckhands, mates, etc.
[5] The court also considered the course of action utilized in M.O. Medina v. One Nylon Purse Seine, 259 F. Supp. 769 (S.D.Cal.1966). In that case, the court ordered that the salvors of a derelict fishing net be awarded fifty percent of the proceeds from the sale of the net and that the rest be held in the registry of the court for a year and a day to give the owner time to come forth to claim the remainder of the proceeds. If no claim was filed during such time, the balance was to be paid to the salvors. This court declines to adopt such a procedure because, as noted earlier, plaintiff's salvage costs exceed the value of the S/V Pangaea. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743523/ | 511 So. 2d 492 (1987)
Patricia Brasell ROSS
v.
Leslie Banks BRASELL and William Michael Brasell.
No. 56776.
Supreme Court of Mississippi.
August 12, 1987.
*493 Ann H. Lamar, Lamar & Lamar, Senatobia, for appellant.
Briggs Smith, Smith, Phillips & Mitchell, Batesville, for appellee.
Before HAWKINS, P.J., and ROBERTSON and ANDERSON, JJ.
ANDERSON, Justice, for the Court:
This is an appeal from the Chancery Court of Panola County wherein the chancellor denied appellant's motion to compel an inventory of the estates of Juanita Banks Brasell and Leslie W. Brasell.
The Brasell family owned considerable property, including the John Deere dealership in Batesville and a 1,400 acre agricultural enterprise named Brasell Farms, Inc. Leslie W. Brasell and his wife Juanita Banks Brasell began planning their estate in 1975 with the aid of their lawyer, Robert Riser. At that time, both Mr. and Mrs. Brasell owned stock in Brasell Farms, Inc.; they decided to resell their stock to the corporation. At a meeting of the board on December 30, 1975, Mr. and Mrs. Brasell offered their shares to the corporation. They agreed to accept the corporation's note in exchange for their shares at an interest rate of 6% to be paid at the $501 per month. On January 6, 1976, the notes were executed separately in the amount of $77,000 each to Mr. and Mrs. Brasell.
On May 26, 1977, the Brasells executed separate wills. Juanita Banks Brasell died on October 24, 1980. Her widower, Leslie, was executor of her will, but died himself on October 13, 1982. His sons, Leslie Banks Brasell and William Michael Brasell, were appointed joint executors of Mr. Brasell's will. They were also appointed administrators de bonis non for the will of Mrs. Brasell. Leslie Banks Brasell, William Michael Brasell and Patricia Brasell Ross, the children of the couple, were the sole beneficiaries under both wills. Patricia filed a petition for inventory of both wills. Leslie Banks and William compiled the inventories, but Patricia objected to their approval and filed a motion to compel a perfect inventory of both estates. The joint administrators countered with a petition asking the chancellor to construe certain provisions of the will of Juanita Banks Brasell.
There are two points of controversy between Patricia and the joint administrators. One concerns whether or not Juanita Brasell owned certain silverware at the time of her death. Item III in the will of Juanita *494 Banks Brasell states: "I give and bequeath unto my husband Leslie W. Brasell a life estate in and to all my personal effects and household goods, with remainder in fee simple absolute to my daughter, Patricia Brasell Ross." In controversy are eight place settings of Rosepoint silver which were in possession of Juanita's granddaughter, Michelle Brasell at the time of Juanita's death. Patricia contends that this silver should have been included in the estate inventory and consequently should have passed to her when Leslie Brasell's life estate terminated with his death. The joint executors, on the other hand, contend that Mrs. Brasell made a gift of the silverware to Michelle before her death.
The second item of controversy in the wills concerns promissory notes. Item II of Juanita's will states: "I give and bequeath unto my sons, Leslie Banks Brasell and William Michael Brasell in equal shares such promissory note or notes from them with any accumulated interest thereon due and not paid." Item II of Leslie Brasell's will states: "I give and bequeath unto my sons Leslie Banks Brasell and William Michael Brasell in equal shares such promissory note or notes from them with any accrued interest which I may hold at the time of my death." The joint executors take the position that the promissory notes referred to in the wills are the two promissory notes executed by Brasell Farms, Inc. in 1976 and exchanged for the resale of the elder Brasells' stock to the corporation. Patricia on the other hand argues that since the wills refer to promissory notes "from them" this does not include the promissory notes executed by the corporation.
In the matter of the silverware, the chancellor, after hearing testimony found that there had been a valid gift inter vivos from Juanita to her granddaughter. As to the matter of the promissory notes, the chancellor, (over the appellant's objections), admitted parol evidence to determine the testators' intent. After hearing the testimony of Riser, the lawyer who helped prepare the wills, he concluded that the testators had meant to bequeath those promissory notes from Brassel Farms, Inc. that were executed in their favor in exchange for the resale of their stock to the corporation.
LAW
I. Did the chancellor err in admitting parol evidence to determine the intent of the testators?
It is the rule in Mississippi, as elsewhere, that if the terms of a will are ambiguous, parol evidence may be admitted to determine the intent of the testator. E.g., Tinnin v. First Bank of Mississippi, 502 So. 2d 659, 670 (Miss. 1987); Maupin v. Estate of Perry, 396 So. 2d 613, 615 (Miss. 1981); Strickland v. Delta Investment Co., 163 Miss. 772, 781, 137 So. 734, 736 (1931). However, if the will is unambiguous and the intent of the testator can be discerned from the face of the document, the admission of such evidence is improper. E.g., Stovall v. Stovall, 360 So. 2d 679, 681 (Miss. 1978); Seal v. Seal, 312 So. 2d 19, 21 (Miss. 1975); In re Estate of Granberry, 310 So. 2d 708, 710-12 (Miss. 1975)
The chancellor allowed the attorney Riser to testify in support of the appellee's contention that the Brasells meant to include the promissory notes executed to them in exchange for their stock in the bequest referring to "promissory notes." Patricia, on appeal, takes the position that since both wills refer to promissory notes "from them" [i.e., from the joint executors] and the promissory notes in question were executed not by the brothers as individuals, but by the corporation, the wills are not ambiguous as to those promissory notes. Patricia contends that whatever promissory notes were intended by the wills did not encompass the promissory notes from the stock transaction since these notes were not "from them." Brasell Farms, Inc. was a closely held corporation in which all stock was held by family members.
Patricia further argues that even if the will were ambiguous, the chancellor did not make an explicit finding of ambiguity; she contends this is an absolute prerequisite for the admission of any parol evidence. Seal v. Seal, 312 So. 2d 19, 21 (Miss. 1975).
*495 This is true, but it is also true that where a chancellor does not make explicit findings, this Court on appeal will assume that all disputed issues were resolved in favor of the appellees. This is so even in cases where the chancellor's findings "left much to be desired." Bryant v. Cameron, 473 So. 2d 174, 179 (Miss. 1985). This Court has recognized that a chancellor may make an implicit as well as explicit finding. Spain v. Holland, 483 So. 2d 318, 320 (Miss. 1986); Dungan v. Dick Moore, Inc., 463 So. 2d 1094, 1100 (Miss. 1985); In re Enlargement of Boundaries of Yazoo City, 452 So. 2d 837, 842 (Miss. 1984). In the present case the chancellor's action in admitting the parol evidence makes no sense unless he had come to the conclusion that the will was in fact ambiguous.
Where a will disposes of property, by a definite description, parol evidence is not admissible to contradict or vary that description. Barner v. Lehr, 190 Miss. 77, 199 So. 273 (1941). On the other hand, where the language of the will could apply to more than one item of property, parol evidence is admissible to determine which property the testator intended to bequeath. Carlisle v. Carlisle's Estate, 252 So. 2d 894 (Miss. 1971); Welch v. Welch, 147 Miss. 728, 113 So. 197 (1927). The question in the present case is whether or not the inclusion of the phrase "from them" makes the description of the promissory notes definite enough to exclude the notes executed by the corporation.
In practice, Mississippi has tended to be liberal in the admission of such evidence, even where the document on its face appears unambiguous. An excellent example is the case of Maupin v. Est. of Perry, 396 So. 2d 613 (Miss. 1981). This involved a will whose residuary clause specified that the testator's surviving nieces and nephews would be beneficiaries. At the time of his death, the testator was survived by one nephew. His last niece died eighteen years previously. The testator was fully aware of that fact. When the will was probated, a dispute arose as to whether or not greatnieces and great-nephews were intended to be included under the residuary clause. The chancellor pronounced the residuary clause ambiguous and employed rules of construction in determining the testator's true intent. This Court held that he had not erred in pronouncing the will ambiguous, but that he had "erred in its resolution by giving literal construction to the word `nephew' thereby limiting the devise to that person. The ambiguity arises from the uncertainty of designating the intended recipients." 396 So.2d at 615.
In effect, this Court held that the surrounding circumstances created ambiguity in the will, despite the apparent clarity of the word "nephew." In this case, the chancellor had not admitted parol evidence to establish the testator's intent, so this Court ruled that the residuary clause was void and the property concerned must descend according to the intestacy statute.
This Court has long recognized that parol evidence is admissible to show the surrounding circumstances where that is necessary to establish the testator's true intent. Keeley v. Adams, 149 Miss. 201, 115 So. 344 (1928). Of special interest is the case of Byrd v. Henderson, 139 Miss. 140, 104 So. 100 (1925). Byrd involved a will which devised all the testator's property to his wife "and her heirs". A dispute arose as to whether or not the testator had intended to include heirs other than children. This Court held it was permissible to use parol evidence of surrounding circumstances to ascertain whether the testator used the word "heirs" in its technical sense or in the sense of children. 139 Miss. at 156-57, 115 So. at 102.
In the present case, we think that the technical significance of the phrase "from them" should not serve to prevent the chancellor from considering parol evidence necessary to establish the true intent of the testator. This accords best with the necessity of establishing the testators' intent and to construe wills so as to "avoid a clearly unintended consequence." Tinnin v. First Bank of Mississippi, 502 So. 2d 659, 669 (Miss. 1987); Est. of Bunch v. Heirs of Bunch, 485 So. 2d 284, (Miss. 1986).
*496 The chancellor's finding not being manifestly wrong, we will not disturb it on appeal.
II: Did the chancellor err in finding a valid gift inter vivos?
Our leading case on gifts inter vivos is Matter of Collier, 381 So. 2d 1338 (Miss. 1980). When it is shown that one party has title to certain property and another party claims that property by virtue of a gift from the owner, the party asserting the gift bears the burden of proof; the quantum of proof is "clear and satisfactory proof." 381 So.2d at 1341. In order for there to be a valid gift inter vivos the following elements must be present: (1) a donor competent to make a gift, (2) a voluntary act of the donor with donative intent, (3) the gift must be complete with nothing else to be done, (4) there must be delivery to the donee, and (5) the gift must be irrevocable. See, e.g., Matter of Collier, 381 So.2d at 1340; Thomas v. Eubanks, 358 So. 2d 709 (Miss. 1978); Longtin v. Witcher, 352 So. 2d 808 (Miss. 1977).
In the present case, the decisive issue is whether or not the last of these requisites was fulfilled. There is dispute as to the degree of control Mrs. Brasell retained over the silverware in the months before her death. Lorene Perkins, the maid, testified that Mrs. Brasell "gave" the silverware to Michelle, but on cross she gave testimony indicating that when the elder Brasells went to Florida they customarily left the silverware at Michelle's house. Therefore the maid's testimony did not prove that Mrs. Brasell "gave" the silverware to Michelle irrevocably in the sense of a gift. Other testimony on this issue was given by Mike Brasell. He testified that he did not consider the silver part of his mother's estate because "mother's wishes were to give it to my daughter Michelle. She gave it to my daughter Michelle." However, he also said that "up until the time mother died, that silverware was in my house, but mother had control over it... . I felt like the silver belonged to my daughter, but I had enough respect for my mother that I would do whatever she told me to do with it."
Thus, the only testimony given about the silverware, did not establish by clear or convincing evidence or otherwise that Mrs. Brasell had relinquished control over the silverware and made the gift irrevocable. Since that is an indispensible element of a gift inter vivos, the chancellor was manifestly wrong in finding that Mrs. Brasell had made that silverware the subject of a gift to Michelle before her death. The silver should have been made a part of the inventory of Mrs. Brasell's estate.
CONCLUSION
The decree of the chancellor is affirmed as to the promissory notes, but reversed as to the silverware. The case is remanded so that the chancellor can order an inventory of the estate consistent with our opinion.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.JJ., and DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN, and GRIFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1748275/ | 714 S.W.2d 144 (1986)
NGUYEN NGOC GIAO, Appellant,
v.
SMITH & LAMM, P.C., Appellee.
No. 01-85-0993-CV.
Court of Appeals of Texas, Houston (1st Dist.).
August 14, 1986.
Rehearing Dismissed September 18, 1986.
*145 Maurita N. Shedlock, Dow, Cogburn & Friedman, Houston, for appellant.
Marcus E. Faubion, Houston, for appellee.
Before EVANS, C.J., and JACK SMITH and WARREN, JJ.
OPINION
JACK SMITH, Justice.
This is an appeal from a summary judgment awarding attorney's fees pursuant to a contract executed between the parties.
The facts in the instant case are undisputed. In February, 1982, the appellant *146 retained the law firm of Adamo, Cobb & Cornelius to represent him in a contract dispute styled Nguyen Giao v. Nguyen Thong and Vietnamese Brothers, Inc. The appellant signed a contract providing that, inter alia, he would pay the firm $100 per hour for its services.
On March 26, 1983, Adamo, Cobb & Cornelius assigned its rights under the contract to the appellee. In June, 1984, the appellee represented the appellant in his claim against Nguyen Thong and the Vietnamese Brothers, Inc. Sometime thereafter, the appellee billed the appellant $19,613.45 for the services it had rendered.
After the appellant failed to pay, the appellee filed suit to recover the $19,613.45 pursuant to its contractual arrangement with the appellant, plus interest and attorneys fees. In response, the appellant filed only a general denial. The appellee then moved for summary judgment based upon the contract executed by the appellant. The court granted the motion and awarded the appellee the $19,613.45 in attorney's fees under the contract, $1,323.90 in prejudgment interest, and $3,750 in attorney's fees for the instant case.
In his first point of error, the appellant contends that the trial court erred in rendering summary judgment for the appellee because the summary judgment evidence did not establish as a matter of law that there was no genuine issue of material fact and that the appellee was entitled to judgment as a matter of law. In his second point of error, he argues that the trial court erred in entering judgment because the appellee did not meet its burden of proving the fairness, adequacy, and equity of the contract between the parties. His third point of error urges that a material fact issue existed regarding his ability to voluntarily enter into the contract and fully comprehend its terms.
The question on appeal in a summary judgment case is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Blum v. Mott, 664 S.W.2d 741, 745 (Tex.App.-Houston [1st Dist.] 1983, no writ). In reviewing a summary judgment record, this court has the duty of applying the following rules: 1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; 2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and 3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Wilcox v. St. Mary's University, 531 S.W.2d 589, 592-93 (Tex.1975).
In his response to the appellee's motion for summary judgment, the appellant stated that he could not read, write, or speak the English language and that it was his understanding that the contract between the parties provided for a contingent fee arrangement.
It is well settled that illiteracy will not relieve a party of the consequences of his contract. Associated Employers Lloyds v. Howard, 156 Tex. 277, 281, 294 S.W.2d 706, 708 (1956); Indemnity Insurance Co. of North America v. W.L. Macatee & Sons, 129 Tex. 166, 170-71, 101 S.W.2d 553, 556 (1937). As a general rule, every person having the capacity to enter into contracts, in the absence of fraud, misrepresentation, or concealment, must be held to have known what words were used in the contract and to have known their meaning, and he must also be held to have known and fully comprehended the legal effect of the contract. Indemnity Insurance Co. of North America, 129 Tex. at 171, 101 S.W.2d at 556. Therefore, if a person is unable to read the contract, he must have it read to him. Id. at 171, 101 S.W.2d at 557. The rule will not operate, however, where trick or artifice is resorted to for the purpose of preventing the party *147 from reading it or having it read to him. Id.
The appellant in the instant case attempts to distinguish this general principle on the basis that the parties were in a confidential relationship with one another. The appellant maintains that the law imposes a burden upon an attorney of establishing the absolute fairness of transactions he has entered into with a client. See Archer v. Griffith, 390 S.W.2d 735, 739-40 (Tex. 1965); Cole v. Plummer, 559 S.W.2d 87, 89-90 (Tex.Civ.App.-Eastland 1977, writ ref'd n.r.e.); Ames v. Putz, 495 S.W.2d 581, 583 (Tex.Civ.App.-Eastland 1973, writ ref'd). It is true that this rule will apply to a contract or other transaction relating to compensation, provided the attorney-client relationship is in existence at the time. Archer, 390 S.W.2d at 739. Therefore, if the employment contract between the attorney and his client was made at the inception of the prior employment, or at or before the present employment, it will not be tainted with the fraud that attaches by presumption to agreements made in the course of the attorney-client relationship. Cole v. McCanlies, 620 S.W.2d 713, 715 (Tex.Civ.App.-Dallas 1981, writ ref'd n.r. e.); Johnson v. Stickney, 152 S.W.2d 921, 924 (Tex.Civ.App.-San Antonio 1941, no writ).
The Archer rule has not been applied, however, where prior to the execution of the contingent fee contract the relationship of attorney and client did exist. Plummer v. Bradford, 395 S.W.2d 856, 859-61 (Tex. Civ.App.-Houston 1965, no writ). The court distinguished the Archer line of cases on the ground that in those decisions the client had attacked the transaction on some ground of unfairness. Id. at 861. Therefore, the court held that unless a client raises the issue of unfairness or inequitable conduct, the presumption of unfairness will not arise. Id. The rationale behind the rule is that an attorney should not be required to defend a conveyance made to him by his client and to establish that such conveyance was fair, just, and equitable, when the issue of unfairness is not asserted or involved. Id. at 861.
In the instant case, the appellant responded to the appellee's motion for summary judgment by asserting that the parties' language barrier created a fact issue as to whether there was a sufficient meeting of the minds to create a contract. The appellant did not allege the existence of a confidential relationship between the parties or the breach of a fiduciary duty by the appellee. Neither did he allege that he was induced into entering into the contract through fraud or other inequitable conduct. On appeal, the appellant has dropped the meeting of the minds issue and, instead, argues that the appellee failed to establish the fairness of the parties' contract.
It is well established that issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal in summary judgment proceedings. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979); Tex.R.Civ.P. 166-A. Therefore, since the appellant failed to raise the parties' relationship or any claim regarding the inequity of the contract in the trial court, these issues are waived on appeal.
In his affidavit, the appellant also alleged that it was his understanding that the fee arrangement was made on a contingent basis. A provision or a term in a contract will be held ambiguous only when an application of the general rules of contract construction renders the writing capable of at least two reasonable, yet different, meanings. Palmer v. Liles, 677 S.W.2d 661, 666 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.) Moreover, the question of ambiguity in a contract is a matter of law for the court's determination. Id.
In the instant case, the terms of the contract clearly state that the appellant was to pay the appellee $100 per hour for services rendered. The contract is, therefore, unambiguous. The appellant's argument is premised upon the admission of *148 parole evidence to vary the terms of an unambiguous provision in the contract. In the absence of fraud, accident, or mutual mistake, parole evidence is inadmissible to contradict the terms of a written instrument that is complete and unambiguous on its face. Id.
The appellant's points of error one, two, and three are overruled.
In the appellant's fourth and fifth points of error, he argues that the trial court erred in granting summary judgment because a material fact issue existed regarding the reasonableness of the attorney's fees requested in the prior suit and the instant suit. It is true that the reasonableness of attorney's fees is a question of fact and must be supported by competent evidence. Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901, 907 (Tex.1966); Palmer, 677 S.W.2d at 666. The appellant argues that he raised such a fact issue through the affidavit of Maurita N. Shedlock, the attorney representing him in the instant case.
After stating her legal qualifications, Shedlock's affidavit challenged the attorney's fees incurred in the prior proceedings on the basis that the appellee's invoice neglected to state approximately how much time was spent in performing each of the legal services charged for, which attorney performed the services, and the attorney's relevant experience. In Shedlock's opinion, the manner of calculating the fees was unreasonable. Shedlock also stated that the $3,750 in attorney's fees sought for services rendered in the instant case was unreasonable, but she did not offer her reasons for reaching that conclusion.
In response, the appellee objected to Shedlock's affidavit on the ground that the statements would not be admissible at trial and therefore, did not constitute summary judgment evidence. On appeal, the appellee also argues that Shedlock failed to comply with Tex.R.Civ.P. 166-A, which requires an affidavit to be made on personal knowledge. The appellee, however, did not raise this issue in the trial court.
A defect in the form of an affidavit, including the failure to state that the affiant has personal knowledge of the facts contained in her affidavit, is not a ground for reversal unless the opposing party specifically pointed out by objection with an opportunity, but refusal, to amend the deficiency. Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 626-27 (Tex.Civ.App.- Houston [14th Dist.] 1979, writ ref'd n.r.e.). Therefore, this particular issue is waived.
The appellee erroneously contends that Shedlock was prevented from testifying as to the reasonableness of its fees under the State Bar's Code of Professional Responsibility. An affidavit by an attorney representing a party in a suit, concerning an award of attorney's fees, whether in support or in contradiction of an amount claimed to be reasonable, is admissible in a summary judgment proceeding and is considered expert testimony. General Specialties, Inc. v. Charter National Bank, 687 S.W.2d 772, 774 (Tex.App.- Houston [14th Dist.] 1985, no writ); Gifford v. Old Republic Insurance Co., 613 S.W.2d 43, 46 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ). See Coward v. Gateway National Bank, 525 S.W.2d 857, 858 (Tex.1975). Moreover, the opinion of an interested expert witness is competent summary judgment proof and can raise an issue of material fact to defeat a summary judgment. Duncan v. Horning, 587 S.W.2d 471, 473 (Tex.App.-Dallas 1979, no writ); Walkoviak, 580 S.W.2d at 626. Therefore, Shedlock qualified as an expert witness in the instant case, and the appellee's exception to her testimony was unmeritorious.
Factors to be considered in determining the reasonableness of attorney's fees include:
(1) the time and labor involved;
(2) the nature and complexities of the case;
(3) the amount of money or the value of the property or interest involved;
(4) the extent of the responsibilities assumed by the attorney;
*149 (5) whether other employment is lost by the attorney because of the undertaking;
(6) the benefits resulting to the client from the services;
(7) the contingency or certainty of compensation; and
(8) whether the employment is casual or for an established or constant client.
Morgan v. Morgan, 657 S.W.2d 484, 491-92 (Tex.App.-Houston [1st Dist.] 1983, writ dism'd). An agreement to pay an attorney a certain sum per hour is not proof of its reasonableness. Leal v. Leal, 628 S.W.2d 168, 171 (Tex.App.-San Antonio 1982, no writ). Nor will a general statement by an attorney that the amount sought is reasonable and necessary support the issue of reasonableness. Morgan, 657 S.W.2d at 492; Meshwert v. Meshwert, 543 S.W.2d 877, 879 (Tex.App.-Beaumont 1976), aff'd, 549 S.W.2d 383 (Tex.1977). Since Shedlock's affidavit raised facts issues regarding the reasonableness of the fees incurred in the prior proceeding, it was error for the trial court to grant a summary judgment.
We also agree with appellant's contention that Shedlock's affidavit raised fact issues regarding the reasonableness of attorney's fees in the present case. In her first affidavit, she asserted that, "[plaintiffs'] attorneys fee in prosecuting the instant lawsuit does not constitute a reasonable attorney's fee." This statement raised the issue of reasonableness of the attorney's fees in the instant suit. Although the appellee filed an objection to the affidavit alleging that the affidavit did not constitute evidence, as required by Rule 166-A(e) of the Texas Rules of Civil Procedure, the objection did not specify how the affidavit was insufficient. This general objection was not sufficient to apprise the trial court of the appellee's complaint.
The appellee also asserted, in exceptions to Shedlock's affidavit, that ethical considerations were raised by Shedlock becoming a witness for her client, the appellant.
The record contains the appellee's exception to Shedlock's affidavit, and we find nothing in the record to show that a hearing was requested or held or that the court ruled on the exceptions. Under such circumstances, the exceptions were waived. Furthermore, the appellee has not cited any authority which states that the trial court could not consider Shedlock's affidavit as competent evidence in a motion for summary judgment. Shedlock, being an attorney, was qualified to give her expert opinion on whether appellee's attorney's fees were reasonable. See Tex.R.Evid. 705.
Appellant's fourth and fifth points of error are sustained.
The judgment of the trial court is reversed and this cause is remanded to the trial court.
EVANS, C.J., dissents.
EVANS, Chief Justice, dissenting.
I disagree with the conclusions reached by the majority on points of error four and five.
The majority opinion holds that the appellee's exceptions to the Shedlock affidavit were waived because the record does not show that the appellee requested or that the trial court held a hearing on the appellee's exceptions. In a summary judgment proceeding, objections to defects in the form of motions or supporting affidavits are made by written exceptions filed in and made a part of the summary judgment record. Tex.R.Civ.P. 166-A(e). By merely filing exceptions in the proceedings, the party asserting such objections effectively presents them to the court for its consideration.
In this case, the appellee's exceptions were before the court at the time of the hearing on appellant's motion for summary judgment, and we must assume that the court acted properly and ruled upon the objections to the Shedlock affidavit. Those objections squarely raised the issue as to whether the affiant, as appellant's counsel in the case, should be permitted to represent appellant and also to testify on a material issue in the case. Until the question of the attorney's qualification was determined *150 by the court, it acted within its discretion in refusing to consider the affidavit testimony of appellant's counsel. Even though confronted with the appellee's exceptions, the appellant did not make any attempt to show that her attorney had withdrawn from her representation or was otherwise permitted to give her testimony in the case. See Bert Wheeler's, Inc. v. Ruffino, 666 S.W.2d 510 (Tex.App.-Houston [1st Dist.] 1983, no writ); United Pacific Ins. Co. v. Zardenetta, 661 S.W.2d 244 (Tex.App.- San Antonio 1983, no writ). Under this particular state of the record, the trial court acted within its discretion in refusing to consider the Shedlock affidavit as raising a genuine issue of material fact precluding the appellee's motion for summary judgment.
I would affirm the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1760817/ | 198 So. 2d 227 (1967)
Robert GUASTELLA et al.
v.
Earl R. WARDELL et al.
No. 44399.
Supreme Court of Mississippi.
April 24, 1967.
*228 Martin & Taylor, Gulfport, for appellants.
Palmer & Stewart, Robert B. Adam, Gulfport, for appellees.
ETHRIDGE, Chief Justice:
Earl R. Wardell and others, appellees, brought this action against appellants, Robert and Rosario Guastella and Gulf Terrace, Inc., to enjoin them from constructing apartment buildings on some of the lots in a subdivision in Pass Christian, and to impose upon the subdivision restrictive covenants previously prepared by the defendants, but modified in material respects before they were filed for record. The basis of the suit was fraud and misrepresentation, both affirmative and by silence at a time when defendants were under a duty to reveal the facts. The Chancery Court of Harrison County enjoined defendants from constructing apartment buildings in the subdivision, and directed that the proposed restrictive covenants, without the changes made by Robert Guastella, should be filed for record for the benefit of all landowners in the subdivision. The covenants as changed were set aside and cancelled. We affirm that decree.
Defendants caused to be formed into a subdivision a strip of land bordering on U.S. Highway 90 and the Gulf of Mexico, with a front of 102 feet, and extending northerly 1500 feet to a public road. The subdivision, Gulf Terrace, is located on valuable beach property in Pass Christian and is composed of 30 lots. The south five lots, running in a tier from south to north, are bounded on the west by an 18 foot wide street. The remainder of the lots front on the east and west sides of this street. Several purchasers of land in the subdivision, Earl R. Wardell and wife, William Ezelle and wife, and Miss Alice H. Sackett, averred in their bill of complaint that they had purchased their lots upon representations by the defendants that the subdivision was restricted, limited to residential construction, and would have a pool, park area, and pier. Landowners to the east and west joined in the suit. Defendants proposed to construct three buildings on the south five lots with 30 apartment units, each to be three stories in height. This would require a sewage disposal facility, to be used until the city constructed a proposed city sewage disposal plant within the next year or so.
Complainants constructed substantial homes on these lots. The Wardells paid $26,900 for their house. Each of them examined the land and surrounding area before buying, and conducted negotiations with defendants or their agents. The lots were numbered, and many of them had signs indicating that a "home" was to be built on the lots. Defendants advertised that luxury homes would be built in the subdivision, and that a pool, park area, and pier would be constructed. Ezell purchased lot seven on July 1, 1965. Miss Sackett bought her property on August 21, 1965. Both deeds stated that they were subject to all restrictions, reservations and easements of record.
Wardell purchased lot 26. Ellis, defendants' selling agent, told Wardell that the subdivision had no zoning regulations, but it did have restrictive covenants. Rosario Guastella advised Wardell before the sale that the subdivision was restricted to houses, and that he had nothing to worry about in *229 this respect. However, Wardell discussed the matter with his attorney, Fred Mannino, and inquired about restrictive covenants.
Mannino checked the records and found none of record. He requested Robert Guastella to file restrictive covenants. In response, Guastella supplied Mannino with a copy of restrictive covenants, not then recorded or executed, which prohibited construction in the subdivision of anything other than private residences, with none to shelter more than two families. Mannino obtained an interim policy of title insurance, and attached to his application for the title binder a copy of these covenants given him by Robert Guastella. A title binder was issued in June 1965, subject to those covenants, and it was mailed to the lending agency. Mannino, Wardell's attorney, had an abstract company check the records on several occasions to determine if covenants had been filed, and he found they had not.
The sale by defendants to Wardell, and the closing of the loan from a lending agency to Wardell, were made in Mannino's law office on Tuesday, July 6, 1965. On Saturday morning, July 3, Robert Guastella had filed certain executed restrictive covenants in the office of the chancery clerk at Gulfport. The filed copy omitted the phrase "all lots" as being subject to residential restrictions and inserted in place thereof a statement that only lots 7 and 26 (purchased by Ezell and Wardell) were subject to restrictive covenants. The following two days, Sunday and Monday, were legal holidays and the courthouse was closed. On Tuesday, July 6, before the transaction was completed, Robert Guastella delivered to Mannino a receipt from the chancery clerk showing that restrictive covenants had been filed for record, but stating nothing further.
Mannino's secretary testified that she reminded her employer to request Guastella to bring a copy of the protective covenants to the closing transaction. She said that Guastella delivered the receipt and the copy of the proposed covenants covering "all lots" in the subdivision, probably on the morning the loan was closed. Mannino said that, at the time he closed the loan, the covenants which he had in his possession were what he thought were the recorded covenants. He later found there were the variations limiting the covenants to the named lots.
On the other hand, Guastella said that at least a month before closing, he delivered to Mannino at his request an unexecuted "dummy" copy of the restrictions, "to process the sale." The copy which he delivered did not restrict the covenants to only two lots. Moreover, the clerk's receipt of the recorded restrictions did not indicate any such limitations. Guastella said that he did not want to record any restrictions on any lots "except the ones that were absolutely necessary." Asked why he did not advise Mannino that the earlier copy was not the one filed for record, he replied, "This was just to indicate what the general idea was of the restrictions out there." Guastella said that originally he did not intend to put restrictions on any of the lots, because he owned the entire subdivision.
The chancery court held: Guastella's explanation that he could not obtain a recorded copy of the covenants from the chancery clerk on that morning raised the question as to why he did not furnish the attorney with a true copy of the covenant which he filed for record, and why he did not point out the changes. People are presumed to contemplate the normal consequences of their actions. The closing attorney had the right to rely on the covenants delivered to him by Guastella until he was otherwise notified by him, or until they had been placed on record and the attorney had a reasonable opportunity to check the records. The court found that this was not reasonably possible at the time of the transaction, considering the normal manner in which land sales are handled and loans are closed in Harrison County. The original draft of the protective covenants *230 delivered to Mannino expressly provided that all lots in the subdivision should be residential lots and restricted accordingly, to housing not to exceed two families and two stories in height. Mannino relied on the protective covenants furnished him by Guastella, who remained silent at the time. It would be "unconscionable to now allow defendants to repudiate this representation to complainants and their attorney, in that defendant failed to speak when he had a duty to speak. * * *"
The undisputed facts, and those found by the chancellor, reveal considerably more than mere silence by Guastella. Silence, in order for there to be liability for nondisclosure, must relate to a material fact or matter known to the party and which it is his legal duty to communicate to the other contracting party. Shortly before the sale to Wardell, Guastella delivered to Wardell's attorney, Mannino, an unexecuted copy of restrictive covenants, applicable to "all lots" in the subdivision. Guastella did this in order to enable Mannino to process the sale. Yet on the Saturday preceding the loan closing he recorded restrictive covenants applicable only to two out of thirty lots in the subdivision. On Tuesday morning he delivered to Wardell's attorney a receipt from the chancery clerk reflecting only that restrictive covenants had been filed for record.
Under those circumstances, Guastella's silence amounted to an affirmation that a state of things existed which did not exist that the recorded covenants covered "all lots" rather than only two. With knowledge of these material facts as to the limitations of the covenants as he had recorded them, Guastella was under a duty to disclose this information. Yet he remained silent. Such a case of failure to speak amounted to suppression of material facts which should have been disclosed, and is in effect a fraud. Restatement (Second) of Torts § 551 (Tent. Draft No. 12, 1966); 23 Am.Jur., Fraud and Deceit §§ 77, 78 (1939, Supp. 1966); 37 C.J.S. Fraud §§ 15, 16 (1943).
A party to a business transaction, under these circumstances, is under a duty to disclose to the other party, before the transaction is consummated, information which will correct previous representations made to the other party which are untrue or misleading. The state of the covenants as filed for record was a fact basic to the transaction, and Guastella must have known that Wardell was entering into the transaction under a mistake as to that fact, and would reasonably expect a disclosure of the truth. Restatement (Second) of Torts § 551 (Tent. Draft No. 12, 1966).
Guastella filed for record the restrictive covenants on Saturday, July 3. The next two days were legal holidays, and the sale was completed on July 6. The chancellor found that on the latter date a certified copy of the recorded covenants could not be obtained from the clerk's office. Because of Guastella's failure to disclose and these circumstances, we do not think the doctrine of constructive notice is pertinent. The rule is summarized in 37 C.J.S. Fraud § 34(c) (1943):
Where the fact misrepresented or the matters which are concealed are peculiarly within the representor's knowledge and the representee is ignorant thereof, it is generally held that, although the real fact appear on the public records, the representee is under no obligation to examine the records, and his failure to do so does not defeat his right of action. This is especially true where the very representations relied on induced the hearer to refrain from an examination of the records, * * * In such cases the doctrine of constructive notice is inapplicable.
Parham v. Randolph, 5 Miss. (4 How.) 435 (1840), applied this doctrine, and held, in effect, that fraud may be predicated on false representations or concealments, although the truth could have been ascertained *231 by an examination of public records. Accord 23 Am.Jur., Fraud and Deceit § 163 (1939).
Affirmed.
BRADY, PATTERSON, INZER and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3099765/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: In re Miguel Zaragoza Fuentes
Appellate case number: 01-14-00624-CV
Trial court case number: 2014-30215
Trial court: 245th District Court of Harris County
On August 5, 2014, relator, Miguel Zaragoza Fuentes, filed a motion for temporary relief
requesting that the Court stay all trial court proceedings while the Court considers relator’s
petition for writ of mandamus. Relator’s motion for temporary relief is denied.
It is so ORDERED.
Judge’s signature: /s/ Jane Bland
Acting individually Acting for the Court
Date: August 6, 2014 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1226496/ | 638 P.2d 1280 (1982)
Robert A. CHAPMAN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 5505.
Supreme Court of Wyoming.
January 14, 1982.
*1281 Ronald P. Jurovich, Thermopolis, for appellant.
Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Sharon A. Lyman, Asst. Atty. Gen., Cheyenne, for appellee.
Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
ROONEY, Justice.
Appellant-defendant appeals from a judgment and sentence rendered on a jury verdict which found him guilty of burglary in violation of § 6-7-201, W.S. 1977. He words the issues on appeal as follows:
1. Did the trial court err in allowing the victim to testify because his memory was refreshed during two hypnotic sessions?
2. Was defendant denied effective assistance of counsel because of the failure to adequately record the hypnotic sessions?
3. Was it reversible error for the prosecution to withhold the testimony of Max Gehring from their case in chief and to present this witness during rebuttal?
We affirm.
The victim (hereinafter referred to as witness) found an intruder in his house when he returned home from work. In the ensuing struggle, the intruder struck the witness on the hand and above the right eye with a hammer. The intruder then fled.
The witness gave a general description of the intruder after the incident. Later, the witness was hypnotized by a Thermopolis city police officer on two occasions. The witness added some details to the previously given description after each session. The reason given for the second session was that the authorities had more than one suspect that matched the description given by the witness during the first session. These sessions were videotaped; however, the tapes, for the most part, were inaudible.
Appellant, on the day of trial prior to any testimony being given, objected to the identification testimony of the witness since it was enhanced by the use of hypnosis. Appellant further asserted that the failure of the videotapes prevented effective assistance of counsel by denying effective cross-examination and by prohibiting appellant's expert to view the procedures used by the State's hypnotist. The court ruled that the State would not mention hypnosis during opening statements and would not present any evidence on hypnosis unless the "defendant opens the gate" on the subject of hypnosis. The State was to be restricted to witness' identification of appellant based on what the "State contends was by reason of the episode that took place where he was assaulted."
In its case in chief, the State presented testimony from the witness and from the investigating officer. The witness testified to the occurrences at the time of the discovery of the intruder, and he identified appellant in court as the burglar. He had previously identified him from a photographic lineup, and the investigating officer so testified.
However, in cross-examination of the witness, the appellant did "open the gate" by inquiring at length into the hypnotic sessions, and in its case in chief, appellant called the hypnotist and examined him extensively concerning such sessions. Appellant also presented evidence relative to hypnotism from his own expert witness on hypnotism. Finally, appellant presented four alibi witnesses, including himself.
In rebuttal, the State presented testimony from one who was incarcerated at the time appellant was incarcerated to the effect that appellant had made statements in the form of a confession. Appellant objected to the testimony on the ground that it should have been presented in the State's *1282 case in chief. The objection was overruled. Appellant then presented a surrebuttal witness who testified that he was present at the time the alleged statements in the form of a confession were made and that they were not, in fact, made.
TESTIMONY BY PREVIOUSLY HYPNOTIZED WITNESS[1]
The issue relative to the admissibility of testimony of witnesses who were previously hypnotized is whether the product of the hypnosis was to refresh or develop the witness' own recollection or to teach the witness and add additional facts to the recollection beyond that which has been mentally stored in the memory, consciously or unconsciously. The issue is properly one for the fact finder as are all issues relative to the credibility of the witness.
Appellant had ample opportunity to test the credibility of the previously hypnotized witness to determine whether or not his recollection as to the identity of appellant had been enhanced by the hypnotic sessions and, if so, whether such enhancement was only to the extent of a recall of his own memory or whether it included suggested items which were not a part of his own memory. In all of this, appellant did not elicit any indication that the witness' testimony was other than from his own recollection or that impermissible suggestions were made during the hypnotic sessions which added to that actually within the memory of the witness.
The witness had given a description of the burglar immediately after the burglary. Later, the witness was subjected to the hypnotic sessions. The witness testified that his recollection was refreshed in part thereby. Thereafter, the witness identified appellant as the burglar from a photographic lineup. He subsequently identified appellant in court as the burglar.
The jury had before it the circumstances of the identification, including the part played therein by the hypnotic sessions. Appellant's attack on the credibility of the witness was before the jury. The success of such attack was for determination by the jury.
The majority of the states are in accord. Such testimony is allowed, leaving it to the fact finder to gauge the credibility of it on the basis of that presented to the fact finder concerning the effect of hypnotism generally and in the specific case. See Annot.: Admissibility of Hypnotic Evidence at Criminal Trial, 92 A.L.R.3d 442, § 8; Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1968), cert. denied 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969); United States v. Awkard, 597 F.2d 667 (9th Cir.1979), cert. denied 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979); United States v. Narciso, 446 F. Supp. 252 (D.C.Mich. 1977); Clark v. State, Fla.App., 379 So.2d 372 (1979); Creamer v. State, 232 Ga. 136, 205 S.E.2d 240 (1974); People v. Smrekar, 68 Ill. App.3d 379, 24 Ill.Dec. 707, 385 N.E.2d 848 (1979); People v. Hughes, 99 Misc.2d 863, 417 N.Y.S.2d 643 (1979); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); State v. Jorgensen, 8 Or. App. 1, 492 P.2d 312 (1971).
A few states have rejected testimony of a previously hypnotized witness as incompetent. They held such testimony as inadmissible per se in a criminal trial. State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981); State v. Mack, Minn., 292 N.W.2d 764 (1980); Commonwealth v. Nazarovitch, ___ Pa. ___, 436 A.2d 170 (1981). Although there may be considerable merit to such holding, appellant does not request that we go so far. But he does urge us to treat the issue on the basis of competency rather than credibility. He urges us to adopt the following procedural requirements set out in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981)[2] to be met and demonstrated to the court before testimony can be received from a previously hypnotized witness:
*1283 1. A psychiatrist or psychologist experienced in the use of hypnosis must conduct the session.
2. The professional conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, investigator or defense.
3. Any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in writing or another suitable form.
4. Before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them. The hypnotist should carefully avoid influencing the description by asking structured questions or adding new details.
5. All contacts between the hypnotist and the subject must be recorded.
6. Only the hypnotist and the subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and the post-hypnotic interview. State v. Hurd, supra, 432 A.2d at 96-97.
The party proffering the testimony[3] of a previously hypnotized witness may well be advised to fortify the credibility of such witness by complying with some or all of these safeguards, but there are too many variables in hypnotism to mandate such requirements.
Since suggestion is a keystone to hypnosis, a form of hypnosis or attempts at hypnosis, are common in our daily lives. Advertising agencies depend upon it for their existence. Repeated suggestions of pleasant results from use of a product or service anticipates an acceptance of such and a desire to use it. Subliminal advertising messages on television[4] were recognized as productive, but their use was restricted. Driving on an open road, watching the monotonous white line, listening to soothing music or to the hum of the motor can produce a form of hypnosis. Self-hypnosis is taught by psychiatrists to assist in eliminating emotional trouble, in overcoming bad habits, for relaxation, etc. Removing oneself from the real world by daydreaming is a form of hypnosis. It has been taught to some of the members of the Air Force to assist in coping with post-crash survival problems.
Conditions for bringing about a hypnotic state include concentration of attention, monotony, inhibition of stimuli, limitation of field of consciousness and limitation of voluntary movement. Under such conditions, one can induce a hypnotic state in others. An induced hypnotic state results from the hypnotist obtaining the attention of the subject and presenting to him a series of suggestive instructions to be accepted in progression from that probable to the subject to that which is improbable to him. This is usually accomplished by oral presentation of the suggestions, but it can be accomplished by physical contact, or by use of mechanical devices such as swinging pendulums, flashing mirrors, rotating disks, metronome, etc. Often the techniques are combined.
There are both quantitative and qualitative differences between subjects in the degree of their involvement in hypnosis. Some people are readily hypnotized. Some can be hypnotized, if at all, only with great difficulty. Furthermore, the hypnotic state is one of degree. Various experts have analyzed the degrees or states to be from 3 or 4 in number to 15 or 20. The degree of involvement varies from a state of drowsiness to a stage of deep somnambulism. Normally, involvement proceeds from slight to large. The involvement of some individuals is limited to the lesser degrees. There is always a potential for "role playing" or *1284 simulation in which the subject seems to accept the improbable instruction, but in fact does not. It is often difficult to detect "role playing."[5]
An allowance is not made for these variables in the six-point foundation requirement. It attempts to establish a rigid and strict procedural standard to a process characterized by variables in its scope and in its application. The frailties of memory without having been subject to hypnosis could as well be said to require the suggested six-point procedural safeguards as does the memory of a previously hypnotized individual. The emphasis should be placed on credibility and not on competence.
"The common law rules of incompetency have been undergoing a process of piece-meal revision by statutes for over a century, so that today most of the former grounds for excluding a witness altogether have been converted into mere grounds of impeaching his credibility." McCormick on Evidence (2d Ed.), § 61, p. 139. "Competence refers to the condition of the witness at the time he or she is called to testify. * * * That her present memory depends upon refreshment claimed to have been induced under hypnosis goes to the credibility of her testimony not to her competence as a witness. Although the device by which recollection was refreshed is unusual, in legal effect her situation is not different from that of a witness who claims that his recollection of an event that he could not earlier remember was revived when he thereafter read a particular document. * * *" Kline v. Ford Motor Co., Inc., 523 F.2d 1067, 1069-1070 (9th Cir.1975).
"We cannot accept Fairchild's argument that Wyller's testimony was rendered inherently untrustworthy by his having undergone hypnosis. Wyller testified from his present recollection, refreshed by the treatments. His credibility and the weight to be given such testimony were for the jury to determine. Fairchild was entitled to, and did, challenge the reliability of both the remembered facts and the hypnosis procedure itself by extensive and thorough cross-examination of Wyller and the hypnotist. Under the circumstances, we perceive no abuse of discretion by the district court. See Harding v. State, 5 Md. App. 230, 246 A.2d 302, 311-312 (1968), cert. denied 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969); State v. Jorgensen, 8 Or. App. 1, 492 P.2d 312, 315-316 (Or. App. 1971)." Wyller v. Fairchild Hiller Corporation, 503 F.2d 506, 509-510 (9th Cir.1974).
Our rules are in accord.
"Every person is competent to be a witness except as otherwise provided in these rules." Rule 601, W.R.E.
The rules do not otherwise provide that the testimony of a previously hypnotized witness is incompetent.
"The credibility of a witness may be attacked by any party, including the party calling him." Rule 607, W.R.E.
An attack on credibility is the proper method to determine the value of the testimony of a previously hypnotized witness. Any one or all of the six points may, or may not, have bearing on the credibility of such witness in a given use.[6] But to make the six *1285 points a foundation requirement to the competency of the witness is improper and unworkable.
The trial court did not err in receiving the testimony of the witness in this case.
DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL
Appellant contends that denial of effective assistance of counsel resulted from the failure to make available to him an audible videotape of the hypnotic sessions. Appellant's contention is rejected by our holding that, although, a recording of such sessions would assist in establishing the credibility of the testimony of the witness, it is not a foundation requirement for such testimony.
However, we note that the two witnesses to the sessions took notes on them. The record does not reflect any effort by appellant to obtain or use such notes. The notes may have been sufficient for the purpose of a recording requirement. The two witnesses to the hypnotic sessions were subject to interview by appellant, and he could present their testimony. The hypnotist was examined extensively by appellant. He denied any improper factual implantation in the mind of the witness. He explained and exemplified the questions posed by him to the witness during the sessions to substantiate the method by which the memory of the witness was refreshed but not added to with suggestions.
Appellant had adequate means to determine that which transpired at the sessions. Effective assistance of counsel was not impaired.
REBUTTAL TESTIMONY
Section 7-11-201, W.S. 1977, provides in pertinent part:
"(a) After the jury has been impaneled and sworn, the trial shall proceed in the following order:
* * * * * *
"(iii) The state must first produce its evidence; the defendant will then produce his evidence;
"(iv) The state will then be confined to rebutting evidence unless the court, for good reasons, in furtherance of justice, shall permit it to offer evidence in chief."
The reception of evidence beyond that which is strictly "rebuttal" is thus placed in the sound discretion of the trial court. Such is in accord with the general law.
"The general rules for the introduction of testimony must be so often applied or relaxed, according to circumstances apparent only to the trial court, that a strict uniformity at all times is not to be expected, and in some instances would prove unjust. Whether there shall be a departure from the usual order of proof is a matter addressed to the sound discretion of the trial court, and an appellate court will interfere only where there is an abuse of discretion. For example, the allowance of evidence to be introduced in rebuttal, which should have been offered in chief, will not be inquired into unless a clear abuse of discretion appears. It has even been said that the reception of evidence out of order is not subject to revision or exception. And failure to follow the regular order of proof has generally been held not to be reversible error unless it is prejudicial." 75 Am.Jur.2d Trial, § 146, pp. 238-239.
"As a general rule, the party upon whom the affirmative of an issue devolves is *1286 bound to give all his evidence in support of the issue in the first instance, and will not be permitted to hold back part of his evidence confirmatory of his case and then offer it on rebuttal. Rebuttal testimony offered by the plaintiff should rebut the testimony brought out by the defendant and should consist of nothing which could have been offered in chief. And unless the court in its discretion dispenses with the requirement, the defendant, as well as the plaintiff, should introduce all his evidence in chief in support of his main case. But the trial court may, in its discretion, permit the introduction of such evidence on rebuttal, and an appellate court will not interfere except in cases of clear abuse of discretion. Nor, as a general rule, will the court on appeal interfere with the discretion of the trial court in refusing to permit evidence in chief to be introduced in rebuttal. However, where evidence is real rebuttal evidence, the fact that it could have been offered in chief does not preclude its admission in rebuttal. And where a failure of proof is not taken advantage of, the court may permit the defect to be supplied on rebuttal." 75 Am.Jur.2d Trial, § 151, pp. 241-242.
The evidence here in question (testimony by one incarcerated with appellant concerning statements made by appellant in the form of a confession) may have been admissible in the State's case in chief. The trial court commented on it in terms of impeaching evidence, but it was actually accepted as part of the State's case in chief.[7] This is evidenced by the fact that appellant was allowed surrebuttal. Rule 7-11-201(a)(iv), supra, makes such within the discretion of the trial court.
The issue here, then, is whether or not the trial court abused its discretion.
"A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * *" Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).
Before making its ruling in this instance, the trial court ascertained that the identity of the witness and the nature of his testimony had been made known to appellant about one week prior to trial. The trial court advised appellant that he could have surrebuttal. The appellant had his surrebuttal witness available to contest the evidence to be given by the rebuttal witness. The surrebuttal testimony was received.
"Late in the trial, after the defense had rested, the state was permitted to introduce evidence that was properly a part of its case in chief. This was a matter within the discretion of the trial judge, and we think the discretion was not abused. Wyo.C.S. 1920, § 7532, par. 4; Keffer v. State, 12 Wyo. 49, 73 P. 556; State v. Pinkston (Wyo.) 240 P. 219. There is nothing in the record to show that defendant was denied the right to meet this evidence by reopening his case, or that he was not then as well prepared to meet it as he would have been if it had been introduced in its regular order." Strand v. State, 36 Wyo. 78, 252 P. 1030, 1032 (1927). See Janski v. State, Wyo., 538 P.2d 271 (1975).
Wyo.C.S. 1920, § 7532, par. 4, referred to in the quotation is identical with § 7-11-201(a)(iv), W.S. 1977, supra.
Under the circumstances of this case, it cannot be said that the trial court acted in a manner which exceeded the bounds of reason. An abuse of discretion did not occur.
Affirmed.
BROWN, Justice, dissenting, with whom ROSE, Chief Justice, joins.
I disagree with the majority's disposition of this case. Stripped of its veneer, this *1287 case holds that a police officer who occasionally plays around with hypnotism can manipulate the recall of a witness and receive the blessing of this court.
The admission in evidence of hypnotically enhanced testimony developed by experts is suspect, even under correct scientific procedures. The admission of hypnotically enhanced testimony, developed by a rank amateur absent any scientific procedure is totally unreliable.
The majority has totally failed to recognize, or even consider, the potential for abuse and the unreliability of hypnotically enhanced testimony.
A few facts need be added to those delineated by the majority. The so-called hypnotist in this case was a police officer. He testified that he had been interested in hypnosis "for quite some time." He was "exposed to it in more depth * * * about January of '80," at the Arson Investigation Seminar, "and subsequent training classes for arson." Sometime in August or September of 1980, the hypnotist took training from Dave Harrington of the State Fire Marshal's Office and from J.P. Johnston, a Cheyenne attorney, one of whom certified him as a hypnotist. We don't know what authority Harrington or Johnston had to certify anyone, nor do we know if this certification was recognized by anyone or any entity. For all we know this certification could have been written on the back of an envelope extracated from the wastepaper basket. Certification must not have been a memorable event in the life of the hypnotist, as he was not even sure who did it.
The hypnotist estimated that he had hypnotized "in the vicinity of two dozen" subjects for practice before hypnotizing Logan. The first person he hypnotized in the course of a criminal investigation was Logan, and he did so approximately one month after receiving his training. The hypnotist has no degree in psychology, nor has he had any college or university courses in psychology or psychiatry. The only training in psychology that he claims to have had was obtained in various classes in police and arson training.
One of the video tapes made at the hypnotic session was totally inaudible. It was testified that 60 percent of the other two tapes could be heard "if you listened very closely". The hypnotist thought notes were taken at the session because he always liked to have two witnesses present taking notes at his sessions. The upshot of all this was that no one at trial ever saw any notes and the video tapes were of no use whatsoever.
The writer of this dissent knows the hypnotist personally. He is a well-qualified law enforcement officer and his honesty and integrity are not in question, but his skills as a hypnotist, and the reliability of the procedures used here, are totally deficient.
I
Webster's dictionary defines hypnosis as "a state that resembles normal sleep but differs in being induced by the suggestions and operations of the hypnotizer with whom the hypnotized subject remains in rapport and responsive to his suggestions * * *."[1] There are many descriptions of hypnosis and hypnotism, but all include the idea that the subject of hypnosis is highly susceptible to suggestion.[2]
Man has known of the phenomenon of hypnosis for many years. It was practiced in ancient times and primitive societies. In *1288 the past, hypnotism was associated with theatrical exhibitions, carnival fakery and fiction.[3]
The most famous case of a subject of hypnotism who imagined an event under hypnosis is that of "Bridey Murphy," a woman who supposedly was "age regressed" to a prior incarnation under hypnosis.[4] In fact, she had inserted into a memory bank facts which came from an entirely different part of her life. Bridey Murphy led one leading authority on hypnosis to observe that the case "shows that memories revived under hypnosis no matter how convincing to the subject, cannot be trusted until verified by external criteria. The `will-to-believe' may be so strong in the hypnotist as well as in the subject as to give the impression of validity."[5]
Within the last 35 years hypnotism has taken on a measure of respectability. In the mid-1950's the British and American Medical Associations formally approved hypnotism's medical use, and in recent years a minority of psychiatrists have used hypnosis to treat mental and emotional conditions.[6]
Hypnotism is accepted by some as an investigative tool. It undoubtedly has value when used to enhance memory in investigations.[7] However, investigators must realize that the use of hypnosis for such purposes may render the potential witness incompetent by destroying the probative value of any evidence that might otherwise have been produced.[8]
Granted that hypnosis is a valuable medical therapy tool, and also has a function in investigation, it is an entirely different matter when hypnosis is employed to enhance the recall of a prospective witness. It seems that it is a big jump from therapy and investigation to enhancing memory without better information than the courts have had in the past. Because a person under hypnosis is highly susceptible to suggestion, we must be very cautious in our approval of hypnotically enhanced recall.
In Dr. Bernard L. Diamond's law review article, "Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness," 68 Cal.L.Review 313, he concludes:
"Many courts currently admit testimony from previously hypnotized witnesses without an adequate understanding of the nature of hypnosis and its dangers to truly independent recall. Perhaps influenced by often naive legal scholarship and biased expert testimony, these courts apparently believe that cross-examination *1289 and expert witness attacks on the credibility of such testimony will reveal any shortcomings in the hypnosis and get to the truth. This hope is misplaced. Even if the hypnotist takes consummate care, the subject may still incorporate into his recollections some fantasies or cues from the hypnotist's manner, or he may be rendered more susceptible to suggestions made before or after the hypnosis. A witness cannot identify his true memories after hypnosis. Nor can any expert separate them out. Worse, previously hypnotized witnesses often develop a certitude about their memories that ordinary witnesses seldom exhibit. Further harm is caused by `expert' witnesses (often self-styled and police-oriented) who, testifying in the state's behalf, make extravagant, scientifically unjustified claims about the reliability of hypnotically enhanced testimony. The plain fact is that such testimony is not and cannot be reliable. The only sensible approach is to exclude testimony from previously hypnotized witnesses as a matter of law, on the ground that the witness has been rendered incompetent to testify." 68 Cal.L.Rev. 313, 348-349 (1980).
The two major professional associations in the field of hypnosis issued identical resolutions condemning the employment of hypnosis by untrained or minimally trained police officers:
"[This organization] views with alarm the tendency for police officers with minimal training in hypnosis and without a broad professional background in the healing arts employing hypnosis to presumably facilitate recall of witnesses or victims privy to the occurrence of some crime. Because we recognize that hypnotically aided recall may produce either accurate memories or at times may facilitate the creation of pseudo memories, or fantasies that are accepted as real by subject and hypnotist alike, we are deeply troubled by the utilization of this technique among the police. It must be emphasized that there is no known way of distinguishing with certainty between actual recall and pseudo memories except by independent verification * * *.
"For these and related reasons, [this organization] is strongly opposed to the training of police officers as hypnotechnicians and the use of hypnosis by the police officer. In those instances when hypnosis is appropriately used in law enforcement, trained psychiatrists or psychologists with experience in the forensic use of hypnosis should be employed, care must be taken to control the amount of information wittingly and unwittingly provided to the subject, and all interactions with the subject before, during, and after hypnosis must be videotaped."[9]
II
The first reported case that I am aware of concerning the use of hypnosis for enhancement of a witness' memory was Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1968), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969). In that case a psychologist hypnotized the victim of the alleged crime to restore her memory. At trial the testimony of both the victim and the hypnotist was admitted in evidence and eventually upheld by the appellate court. This case spawned other cases cited in the majority opinion.
Harding and its progeny generally reason that testimony of a witness whose memory has been enhanced through hypnosis should be treated like other witnesses whose present recollection has been refreshed. Under this rationale it is assumed that skillful cross-examination will enable the jury to evaluate the effect of hypnosis on the witness and the credibility of his testimony. See State v. McQueen, 295 N.C. 96, 120-121, 244 S.E.2d 414, 427-428 (1978); State v. Jorgenson, 8 Or. App. 1, 9, 492 P.2d 312, 315 (1971).
*1290 Recent cases have been critical of basic assumptions in Harding and its progeny. In State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1980); and State v. Mack, Minn., 292 N.W.2d 764 (1980), the courts considered expert testimony and other evidence concerning the problems associated with using hypnosis as a means of reviving memory. The Arizona and Minnesota courts held that because hypnosis is essentially a scientific procedure it must satisfy the standard for the admissibility of scientific evidence established in Frye v. United States, 293 F. 1013 (D.C. Cir.1923); accord, Polk v. State, 48 Md. App. 382, 427 A.2d 1041, 1048 (Ct. Spec.App. 1981); and People v. Tait, 99 Mich. App. 19, 297 N.W.2d 853, 857 (1980).
Applying the Frye test, both Arizona and Minnesota courts found that hypnosis has not gained general acceptance in the particular field in which it belongs, at least as a means of obtaining accurate recall of prior events. Therefore, they held that the testimony of a witness who has undergone hypnosis to refresh his recollection is per se inadmissible in a criminal trial.
The Supreme Court of Pennsylvania in Commonwealth v. Nazarovitch, Pa., 436 A.2d 170 (1981), held that any means by which evidence is scientifically adduced must satisfy the standard established in Frye v. United States, supra, at 172. The Pennsylvania court, however, held that at this time it did not want to establish a per se rule of inadmissibility, holding:
"* * * We will not permit the introduction of hypnotically-refreshed testimony until we are presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory * * *." Commonwealth v. Nazarovitch, supra, at 178.
I favor the approach of the Pennsylvania court rather than a per se rule that hypnotically enhanced recall is inadmissible, as was done by Arizona and Minnesota.
III
The standard for admitting scientific testimony most commonly employed by the courts is set out in Frye v. United States, supra, at 1014:
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."
In Frye, the court held that the results of a polygraph test were inadmissible because the defense had not established that the device was generally accepted in the scientific community as a reliable indicator of a person's truthfulness.
The underlying rationale for requiring a standard is fear that the trier of fact, usually a jury, will accord uncritical and absolute reliability to a scientific device or phenonomen without considering its shortcomings. Jurors tend to give considerable weight to scientific evidence when presented by experts with impressive credentials. The aura of special reliability and trustworthiness surrounding scientific or expert testimony makes it particularly necessary that a careful foundation be laid for its admission.
Although setting out specific procedural safeguards would not be helpful in a dissent, legal literature suggests some general guidelines that might be helpful to police and prosecutors who want to assure that the hypnotic testimony is reliable and not risk a possible reversal when we eventually decide that our ruling here is an anomoly.
When hypnotically enhanced testimony is offered in evidence the trial judge should determine as a preliminary matter that:
1. Hypnosis, as a means of refreshing or enhancing recall, is generally accepted in the scientific community.
2. The hypnotist is qualified.
3. The use of hypnosis is appropriate for the kind of memory loss encountered in the case before the court.
*1291 4. Correct scientific procedures are employed in producing enhanced recall.
This four point preliminary determination is not unlike foundation necessary for the admission of any medical or scientifically related testimony.
The majority has alluded to a six point procedural requirement set out in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981).
One authority, Dr. Martin T. Orne, has suggested guidelines for "correct scientific procedure" in the context of forensic hypnosis:[10]
"1. Hypnosis should be carried out by a psychiatrist or psychologist with special training in its use. He should not be informed about the facts of the case verbally; rather, he should receive a written memorandum outlining whatever facts he is to know, carefully avoiding any other communication which might affect his opinion. Thus, his beliefs and possible bias can be evaluated. It is extremely undesirable for the individual conducting the hypnotic sessions to have any involvement in investigation of the case. Further, he should be an independent professional not responsible to the prosecution or the investigators.
"2. All contact of the psychiatrist or psychologist with the individual to be hypnotized should be videotaped from the moment they meet until the entire interaction is completed. The casual comments which are passed before or after hypnosis are every bit as important to get on tape as the hypnotic session itself. (It is possible to give suggestions prior to the induction of hypnosis which will act as posthypnotic suggestions.) ...
"3. No one other than the psychiatrist or psychologist and the individual to be hypnotized should be present in the room before and during hypnotic session. This is important because it is all too easy for observers to inadvertently communicate to the subject what they expect, what they are startled by, or what they are disappointed by...
"4. Because the interactions which have preceded the hypnotic session may well have a profound effect on the sessions themselves, tape recordings of prior interrogations are important to document that a witness had not been implicitly or explicitly cued pertaining to certain information which might then be reported for apparently the first time by the witness during hypnosis."
The California Attorneys for Criminal Justice suggest the following guidelines for correct scientific procedure:
"1. That the hypnotist be a mental health person with special training in the use of hypnosis, preferably a psychiatrist or psychologist;
"2. That this person not be informed about the case verbally, but only in writing subject to scrutiny;
"3. That the hypnotist be independent and not responsible to the parties;
"4. That all contact between the hypnotist and the subject be video-taped from the beginning to the end;
"5. That nobody representing either party be present with the hypnotist and the subject during the session;
"6. That prior to the session hypnotist examine the subject to exclude the possibility of physical or mental illness and to establish sufficient intelligence, judgment, and comprehension of what is happening;
"7. That the hypnotist elicit all facts from the subject prior to the hypnosis;
"8. That during the session, hypnotist strive to avoid adding any new elements to subject's description, including any explicit or implicit cues, before, during, or after the session;
"9. That corroboration be sought for any information elicited during the session."[11]
*1292 In cases cited by the majority permitting hypnotically enhanced testimony, and in other cases that I have read, the hypnotist had at least a modicum of expertise and employed some verification procedure. Here we have questionable expertise and a total lack of verification. I know of no case that has permitted the admission of hypnotically enhanced testimony with such a total lack of foundation.
In considering qualifications and procedural safeguards here, it is obvious that there was a total lack of compliance with any safeguards or procedures. The hypnotist in the case at bar was not a psychiatrist or a psychologist, but was interested in hypnosis as a hobby. Also, the hypnotist performing the hypnotic session was not independent of the parties involved, but was a police officer. There was also a failure to reduce to writing any information that had been given the hypnotist by the law enforcement people. Further, there is no record that the hypnotist obtained from the subject a description of the facts as the subject remembered them before the hypnosis session. The hypnosis session was not recorded. Apparently there were no backup procedures; that is, no stenographic notes were taken and no handwritten notes surfaced. Lastly, the session was not conducted with the hypnotist and the subject only; other people including police officers were present during the hypnosis session.
Police and prosecutors should not test the court again but should take immediate measures to insure that the hypnotist is qualified and that the patent deficiencies in the procedures here are not repeated. Poorly conceived law usually survives its maker. Its puny existence is sustained mainly by sentiment. I believe that this court will retreat from its holding here. This case should be placed in a museum as an object of interest, but of no value as a precedent.
The state failed to demonstrate that the use of hypnosis in this case was sufficiently reliable to allow Mr. Logan's testimony to be admitted. I would, therefore, reverse and remand for a new trial.
NOTES
[1] We are not here concerned with the admissibility of statements obtained from an individual while hypnotized, or of testimony given by an individual while hypnotized.
[2] The six-point foundation concept was previously advanced by Dr. Martin Orne, a research psychiatrist at the University of Pennsylvania.
[3] The defendant in a criminal case is often the party offering such testimony. See "Hypnosis as a Defense Tactic," 1 Toledo L.Rev. 691 (1969); Cornell v. Superior Court, County of San Diego, 52 Cal.2d 99, 338 P.2d 447, 72 A.L.R.2d 1116 (1959).
[4] Those placed on and taken off the screen so rapidly that they function only beyond conscious awareness.
[5] See the following with reference to the content of the three preceding paragraphs:
Weitzenhoffer, General Techniques of Hypnotism, Grune & Stratton, 1957. Dr. Weitzenhoffer was Professor of Psychiatry and Behavioral Sciences, University of Oklahoma Health Sciences Center at the time of publication.
Bryan, Legal Aspects of Hypnosis, Charles C. Thomas, 1962. Dr. Bryan was Fellow, Past President, and Executive Director of American Institute of Hypnosis, Los Angeles, California, at the time of publication.
LaCron, Self-Hypnotism, Prentice-Hall, Inc., 1964. Mr. LaCron was a Clinical Psychologist at the time of publication.
Gordon, Handbook of Clinical and Experimental Hypnosis, The MacMillan Company, 1967. Mr. Gordon was Associate Professor of Psychology and Social Work, University of Michigan, at the time of publication. The book is a collection of papers on clinical and experimental work of a number of authors.
[6] A careful attorney, investigator, etc., must always weigh the advantages and disadvantages of an attempt to stimulate the recall of a witness through hypnosis or even through suggestive questions not involved in deliberate hypnotic induction. The use of such may result in a piece of vital information, but the information may become valueless as evidence when the manner in which it is obtained is made known to the jury. Not only may that piece of information become valueless, but the rest of the testimony from that witness may lose credibility. The careful attorney, investigator, etc., will consider use of the safeguards such as contained in the six points to protect the credibility of the witness. The investigator in this case made an effort to videotape the sessions. Although the audio portions of the videotapes were defective, his efforts were commendable. However, the impartiality of a hypnotist could be more convincingly established if he were other than a police-related investigator.
[7] A judgment will be affirmed if sustainable on any basis or legal ground appearing in the record. Wightman v. American National Bank of Riverton, Wyo., 610 P.2d 1001 (1980); and Heyl v. Heyl, Wyo., 518 P.2d 28 (1974).
[1] Webster's Third New International Dictionary, Unabridged, p. 1114, (G. & C. Merriam Co., Publishers, 1966).
[2] Hypnosis:
"1. Hypnotic state: an artifically induced state resembling deep sleep, or a trancelike state in which the subject is highly susceptible to suggestion and responds readily to the commands of the hypnotist. 2. Somnus: natural sleep (rare)." Stedman's Medical Dictionary, Third Unabridged, Lawyer's Edition, p. 606 (1972).
Hypnotism:
"The act of inducing artificially a state of sleep or trance in a subject by means of verbal suggestion by the hypnotist or by the subject's concentration upon some object. It is generally characterized by extreme responsiveness to suggestions from the hypnotist." Black's Dictionary, p. 668 (5th ed. (1979)).
[3] Lewis R. Wolberg, M.D., Hypnosis: Is It For You?, Harcourt Brace Jovanovich, Inc., New York, p. 285 (1972):
"* * * Hypnosis is a much misunderstood phenomenon. For centuries it has been affiliated with spiritualism, witchcraft, and various kinds of mumbo jumbo. It is a common tool of quacks, who have used it to `cure' every imaginable illness, from baldness to cancer. The exaggerated claims made for it by undisciplined persons have turned some doctors against it. Some psychiatrists, too, doubt the value of hypnosis because Freud gave it up sixty years ago and they themselves have not had too much experience with its modern uses."
[4] Bernstein. The Search For Bridey Murphy (1956), and Kline, ed., A Scientific Report on the "The Search for Bridey Murphy" (1956).
[5] Hilgard. Divided Consciousness: Multiple Controls in Human Thought and Action. New York: Wiley (1977), at p. 59.
[6] 12 Encyclopedia Britannica 24 (1964).
[7] example, in the Chowcilla kidnapping of 26 children who had been riding in a school bus, the bus driver was able to recall under hypnosis a license plate number. This proved instrumental in the apprehension of the kidnappers." 68 Cal.L.Rev. 313, 332, n. 93 (1980).
[8] Bernard L. Diamond, M.D., doubts the value of hypnosis as an investigative tool:
"In my opinion, however, the value of hypnosis for investigative purposes has been greatly overstated by exaggerated claims in irresponsible books and articles. As Freud discovered long ago, whatever can be done by hypnosis can also be done without hypnosis; it merely takes longer and requires greater skill and patience. My own experience convinces me that safe and effective enhancement of recall, with less hazard of suggestion and contamination of future testimony, can be accomplished without gimmicks such as hypnosis and `truth serum.'" 68 Cal.L.Rev. 313, 332, n. 93 (1980).
[9] Resolution passed in October 1978 by the Society for Clinical and Experimental Hypnosis and in August 1979 by the International Society of Hypnosis, as reported in 27 Int. Jour. Clin & Exp. Hypnosis 452, 453 (1979).
[10] Orne, "The Use and Misuse of Hypnosis in Court," pp. 311, 338-339. These guidelines are also cited in State v. Mack, Minn., 292 N.W.2d 764, n. 14, p. 771 (1980). Dr. Orne is co-author of the article on hynosis in 9 Encyclopedia Britannica Macropedia 133 (15th ed. 1979).
[11] These guidelines, first set forth in Wisconsin v. White, No. J-3665, March 27, 1979, are reprinted in 17th Annual Defending Criminal Cases, "A Practical Look at Current Developments in Criminal Law," Ephraim Margolin, ed., Vol. 2, at 987-988 (Practicing Law Institute, 1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1413876/ | 663 F.Supp. 585 (1987)
UNITED STATES of America
v.
Christobal RODRIGUEZ, Rafael Velasquez.
Crim. No. 87-0105.
United States District Court, District of Columbia.
June 18, 1987.
*586 Theodore A. Shmanda, Asst. U.S. Atty., Washington, D.C., for plaintiff.
Christopher M. Davis, Washington, D.C., for defendant Christobal Rodriguez.
Mona Asiner, Washington, D.C., for defendant Rafael Velasquez.
MEMORANDUM AND ORDER
BARRINGTON D. PARKER, Senior District Judge:
Counsel for defendant Christobal Rodriguez has moved the Court to reconsider its ruling and order entered on May 19, 1987, rejecting a challenge to the execution of the warrant to search the premises, 1368 Quincy Street, N.W. Defendant's counsel argues that the police officers who executed the search warrant violated the provisions of Title 18 U.S.C. § 3109.[1] Specifically, he contends that the police failed to wait a sufficient amount of time before forcing entry with a battering ram and that "there were no facts indicating any circumstances which would lead a reasonable [person] to conclude evidence was being disposed of or even attempts to do such." (Defendant's Motion to Reconsider at 6.)
After reviewing the memoranda and arguments presented by counsel and reflecting upon the facts of this case, this Court grants the defendant's motion and concludes that the District of Columbia police officers failed to wait until they were refused admittance as required by the "knock and announce" rule and that no exigent circumstance existed to otherwise excuse their failure to comply with the clear language of the statute.
I.
The factual record in this case is fully set forth in this Court's May 19th opinion. Defendant Rodriguez, a suspected drug trafficker resided with his wife and baby at the Quincy Street residence. Co-defendant Rafael Velasquez (age 19) and his 17 year old brother resided in the basement of the premises with his parents, brothers and a sister. Velasquez was also a suspected drug trafficker. There were other residents in the dwelling, all related by either blood or marriage. Velasquez is a nephew of Rodriguez.
*587 The testimony[2] clearly shows and the parties concede that the police executing the search warrant knocked, announced themselves, and then waited only a matter of seconds before breaking open both the basement and front doors of the dwelling with a battering ram. Officer Bertie Shields testified that he knocked on the basement door and stated "Police. We have a search warrant and will execute it." He further stated that the officers on the warrant detail waited for "approximately 5 seconds" before breaking down the door. M.H. I at 33. Officer Michelle Jones offered similar testimony, that the officers entering the first floor waited "approximately 3 to 5 seconds" before knocking down the door. Id. at 127-28.
The two officers testified that they forcibly entered the premises to prevent the loss of evidence. Their fear was solely based on the fact that "narcotics are easily disposed of." M.H. II at 10. The officers candidly acknowledged that they heard no noises or suspicious sounds from within the house nor were they in any way apprehensive or fearful that the occupants were engaged in efforts to dispose of contraband or seeking to flee.
II.
In executing a search warrant police are permitted to forcibly enter the premises only if "after notice of [their] authority, [they are] denied admittance." Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332 (1958). See also 1 Wharton's Crim.Proc.Supp. § 170. Section 3109 does not specify how long law enforcement officers must wait before they are constructively denied admittance and are entitled to forcibly enter the premises.[3] Our Circuit has adopted a flexible timing rule. "The time that section 3109 requires officers to wait before they may construe no response as a denial of admittance depends largely on factual determinations made by the trial court." United States v. Davis, 617 F.2d 677, 695 (D.C.Cir.1979) (police knocked, announced themselves and waited 15 to 30 seconds before entering, no exigent circumstances raised).
However, this Court has been unable to uncover any reported case in this or any other circuit, upholding the legitimacy of a forcible entry when the officers waited less than 10 to 20 seconds. Even in Davis, the police waited for a much longer period than the amount of time waited here. See also United States v. Smith, 520 F.2d 74 (D.C. Cir.1975) (in executing warrant for narcotics, police knocked, announced and waited 15 seconds at which time they heard suspicious sounds causing them to fear suspect was disposing of drugs and then forcibly entered premises); Masiello v. United States, 317 F.2d 121 (D.C.Cir.1963) (in executing a search warrant to recover gambling papers, officers knocked once without announcement, waited 10 to 20 seconds, knocked second time, announced and waited 10 to 20 more seconds, heard rustling papers, feared evidence would be destroyed and entered). United States v. Alatishe, 616 F.Supp. 1406 (D.D.C.1985) (knocked once, waited 30 seconds, knocked second time and waited 15 additional seconds). Even in the case chiefly relied upon by the government, United States v. James, 764 F.2d 885 (D.C.Cir.1985), and upon which this Court also relied in its original decision, the police knocked and announced themselves repeatedly and then waited 30 seconds before battering down the door. Further, in most of the cases cited above where the police only waited a short time before forcibly entering the premises, they acted with haste because they heard contemporaneous sounds emanating from and/or saw activities within the premises, which created a reasonable belief that the suspects would attempt to escape, to resist or to destroy evidence. See also United States v. Ruminer, 786 F.2d 381, 384 (10th Cir.1986) (officers waited 5 to 10 seconds and upon seeing suspect leaving room, *588 feared he would destroy evidence and then forcibly secured entrance to the premises).
A.
Those few seconds that the officers waited before resorting to the battering ram, afforded little if any time for any occupant to hear and respond to a knock, let alone to make it to the door. The warrant in this instance was served at 6:30 o'clock in the morning, a time when the occupants were in bed, still sleeping. In fact, the search warrant officers found all the basement occupants of the premises, including the co-defendant, his brother, sister and parents, still dressed in their pajamas. The co-defendant Velasquez, along with a younger brother, were found in bed in their bedroom. Given the important purposes behind 3109 to protect "the precious interest of privacy as summed up in the ancient adage that a [person's] house is his castle" Miller v. United States, 357 U.S. at 307, 78 S.Ct. at 1194, this Court concludes that 3 to 5 seconds is insufficient time to constitute "refused admittance" under the statute.
Courts have waived the requirements of the "knock and announce rule" if the police can demonstrate that exigent circumstances necessitate rapid entry. These circumstances include a reasonable belief that the evidence will be imminently destroyed. United States v. James, supra; United States v. Smith, 520 F.2d 74 (D.C. Cir.1975); United States v. Hubbard, 493 F.Supp. 209 (D.D.C.1979), aff'd, United States v. Heldt, 668 F.2d 1239 (1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982). See also, Annotation, What Constitutes Violation of 18 U.S.C. 3109 Requiring Federal Officer to Give Notice of His Authority and Purpose Prior to Breaking Open Door or Window or Other Part of House to Execute Search Warrant, 21 A.L.R.Fed. 820. In every case in which the courts have invoked the exigent circumstance exception, the police have testified that they had some specific and immediately ascertainable reason for fearing the loss of the desired evidence. In narcotics cases, the police generally testify to hearing some suspicious noises on the other side of the door which created a reasonable belief that the inhabitants were destroying the contraband. See Masiello and Smith, supra. In the government's main authority, James, the police heard someone running down the back stairs after they knocked and announced themselves. Our Circuit concluded that "a reasonable interpretation of such sounds is that the inhabitants are well aware of the purpose of the police visit and are moving to destroy evidence." Id. at 888.
Several state courts have ruled that, in the absence of any specific basis for fearing the loss of evidence, officers' forced entry within 3 to 5 seconds of announcing their notice and purpose violated their respective state's "knock and announce" rule. Tatman v. State, 320 A.2d 750 (S.Ct.Del. 1974) (forced entry within 5 seconds of knock at 6:00 a.m. insufficient time to constitute refused admittance); State v. Bates, 120 Ariz. 561, 587 P.2d 747 (1978) (3 to 5 seconds insufficient to demonstrate constructive refusal of admittance). In Bates, which also concerned a search warrant for narcotics, the Arizona court en banc concluded that:
The mere fact that this search warrant was executed for the purpose of discovering narcotics does not necessarily create an exigent circumstance justifying immediate entry.... [S]tanding by itself, the easy destructibility of narcotics evidence is insufficient to provide reasonable cause for officers to believe that announcement of the purpose of their entry would frustrate the search.... There must be `substantial evidence' to cause the police to believe evidence would be destroyed.
Id. at 749.
Similarly, in Tatman, which concerned a search warrant for narcotics executed at 6:00 in the morning, the Delaware court stated:
There was no foundation to support a good faith belief on the part of the police officers that full and complete compliance with the rule would have increased their peril, frustrated the arrest, or permitted *589 destruction of evidence. (emphasis added)
Tatman at 751.
Here, the police officers failed to offer any reasons which caused them to have a basis, let alone a reasonable basis for fearing that any person, including these defendants, were likely to destroy the evidence. They admitted that they did not hear any noises emanating from the other side of the door. The officer who participated in the execution of the search warrant and also testified at the motions hearing stated that she stood right next to the door and "didn't hear anything." M.H. II at 10. Their entire basis for fearing a loss of evidence rested on the general observation that "narcotics are easily disposed of." M.H. II at 10. It must also be pointed out that the two officers who testified, Bertie Shields and Michelle Jones, were officers each with five years prior experience.
B.
Though consideration of the disposability of the evidence may provide a starting point for justifying a forcible entry, it is no more than a starting point. Without more specific signals indicating that these suspects may be preparing to destroy evidence, law enforcement officers cannot rely on the disposability factor alone to authorize a forcible entry such as employed in this situation. Otherwise this rule of "easy disposability" would warrant forcible entries into the homes of private citizens whenever the police execute a search warrant for narcotics (or for that matter any other contraband which is susceptible to easy destruction). Such an expansive rule would effectively reduce the standard for showing exigent circumstances to that of probable cause. Once a police officer possessed a search warrant, she would have a green light to batter down the suspect's door. Such a rule would render Section 3109 into a nullity and result in needless destruction of private property.
In reconsidering and setting aside the earlier decision of May 19, 1987, this Court heeds the well considered words of Mr. Justice Brennan:
The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, has declared in § 3109 the reverence of the law for the individual's right of privacy in his house. Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house.
Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332 (1958).
The important principles protected by the statute would be severely undermined if the officers' actions were sustained, based solely on their observation and later testimony elicited at the motions hearing that narcotics are easily disposable. That consideration alone is insufficient to demonstrate exigent circumstances authorizing a forcible entry by the police.
C.
On basis of the above, the original order of May 19, 1987 denying the motion of the defendant to suppress evidence is vacated and set aside. The defendant's motion for reconsideration is granted and all evidence and contraband recovered by the District of Columbia police pursuant to the search warrant executed on February 26, 1987, is suppressed and shall not be relied upon in the prosecution of this proceeding. Since entry to each door of the premises, 1368 Quincy Street, N.W., was secured in the same manner, this ruling shall apply to all evidence and contraband seized.
NOTES
[1] Section 3109 of Title 18 provides:
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.
[2] Reference to the testimony at the Motion Hearing conducted on April 24 and 27, 1987 is identified herein as M.H. I and M.H. II.
[3] The case law is clear that refused admittance need not be an affirmative act; it can be constructive or implied, Masiello v. United States, 317 F.2d 121, 122 (D.C.Cir.1963). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1584872/ | 641 So.2d 586 (1994)
RIDGE OAK DEVELOPMENT, INC. and St. Bernard Home Development, Inc.
v.
Cecil Leitz MURPHY, individually and L. Murphy's Trucking Service, Inc.
No. 94-CA-0025.
Court of Appeal of Louisiana, Fourth Circuit.
June 30, 1994.
Rehearing Denied September 13, 1994.
*587 Glenn E. Diaz, Chalmette, for appellants.
Joseph R. Bossetta, Patrick R. Bossetta, Dorsey & Bossetta, New Orleans, for appellees.
Before BYRNES, JONES and WALTZER, JJ.
BYRNES, Judge.
On September 3, 1993 the Thirty-Fourth Judicial District Court for the Parish of St. Bernard rendered judgment in favor of plaintiffs-appellees, Ridge Oak Development, Inc. and St. Bernard Home Development, Inc. (referred to collectively as the "developers") and against the defendant, L. Murphy's Trucking Service (Murphy), in the sum of $25,000.00. We affirm.
The developers desired the construction of an artificial lake in Oak Ridge Park Subdivision. Murphy is in the business of excavating earth, sand and gravel, transporting same to job sites, and supplying same to home owners and builders in the area. Murphy desired to obtain the dirt excavated from the area that was to become the lake for use as fill for other projects.
In a series of transactions between 1987 and 1990, Murphy agreed to purchase the fill material from the developers, in place, and to remove same from the developers' property, the result of which was to create Acorn Lake in the Oak Ridge Park Subdivision. The excavation was performed in phases, under four separate contracts. The first contract was executed on September 8, 1987, and provided for the excavation of a lake bed which was five acres in area. Murphy excavated the fill from the specified five acres of land in the subdivision. For the right to remove the fill from that area, Murphy paid $125,000.00. That payment was funded by the advance payment of $50,000.00 and by the making of a promissory note for the $75,000.00 balance.
On April 18, 1990, a second contract was entered into by and among those same parties, this time for the excavation of three acres with defendant paying the developers $75,000.00 in advance for the right to remove the fill which was excavated from that area. On that occasion, Murphy allegedly excavated more fill than called for in the contract between the developers and itself.
Murphy then entered into a third contract to purchase the fill from the contiguous two acres. The alleged excess fill which had been previously removed under the second contract was included within that two-acre plot and was paid for by the payment of $50,000.00 for the right to remove the fill from the balance of the two acre plot.
On September 28, 1990 a fourth contract was entered into for the removal of one acre *588 of fill in the specified manner for the usual $25,000.00 price per acre. The work under that contract was completed in October of 1990. The developers claimed that Murphy removed more fill than it paid for under the fourth contract. They sought payment for 1.37 acres of excess fill, at the same price of $25,000.00 per acre as Murphy had paid under the previous contracts. No additional agreement was entered into between Murphy and the developers for any additional amounts of fill material as there had been following the second contract involving the three-acre plot when Murphy allegedly excavated more fill material than it had bought.
On February 13, 1992 the developers filed this suit claiming that Murphy was indebted to them at the rate of $25,000.00 per acre for removing 1.37 acres more of dirt than called for in the contract; $25,000.00 for the cost of removing debris from adjoining property; and 25% attorney's fees.
Murphy filed an answer and third party demand against Eugene I. Estopinal & Associates, Inc., the land surveyor, for negligence. The third party defendant filed an exception of prescription, pleading the liberative prescription of one year. A directed verdict was rendered in favor of the third party defendant. The judgment in favor of the third party defendant has not been appealed.
I. The Developers' Claim Did Not Prescribe In One Year
The main question raised by this appeal is whether the taking of the excess dirt was tortious in nature in which case the claim of the developers would have prescribed in one year prior to the time this suit was filed; or was it a breach of the contract in which case the developers' claim was subject to the ten year prescriptive period; or both.
Although it is necessary for this Court to determine the nature of plaintiffs' claim in order to determine the applicable prescriptive period, plaintiffs are required to plead only such facts as will entitle them to recover under any applicable theory. The "theory of the case" is abolished as a pleading requirement or restriction. Cox v. W.M. Heroman & Co., 298 So.2d 848 (La.1974); Brewhouse, Limited v. New Orleans Public Service Inc., 614 So.2d 118 (La.App. 4 Cir. 1993). When a certain state of facts under the law entitles a party to alternative remedies, both founded upon the identical state of facts, these remedies are not considered inconsistent remedies. Giron v. Housing Auth. of City of Opelousas, 393 So.2d 1267, 1271 (La.1981).
It is well settled that the same acts or omissions may constitute a breach of both general duties and contractual duties and may give rise to both actions in tort and actions in contract. Free v. Franklin Guest Home, Inc., 397 So.2d 47, 49 (La.App. 2 Cir.1981), writ den. 401 So.2d 975 (La.1981), and appeal after remand 463 So.2d 865 (La. App. 2 Cir.1985), writ den. 467 So.2d 535 (La.1985), writ den. 467 So.2d 536 (La.1985); United Gas Pipe Line Co. v. Cargill, 612 So.2d 783, 785 (La.App. 1 Cir.1992); See also: Federal Insurance Co. v. Insurance Co. of No. Amer., 262 La. 509, 263 So.2d 871 (1972).
None of the cases cited by Murphy[1] on the taking of shell, sand and gravel, timber, oil and gas, or other minerals are applicable to this case. We accept Murphy's argument that an analogy can be drawn to the taking of such things, including timber. But the cases Murphy cites do not say that where a plaintiff's claims give rise to actions both in contract and in tort that such claims are limited to tort recovery and tort prescription. The only case that really addresses this question in a factually analogous context is Oberling v. Miller, 86 So.2d 748 (La.App. 1 Cir.1956).
In Oberling the defendant purchased standing timber on the plaintiff's land. The contract specifically required that no cedar trees be cut. The court held as follows:
*589 A trial upon the merits resulted in judgment for the plaintiff's for the 8 cedar trees cut in violation of the terms of the contract, in the amount of $160.
* * * * * *
The appellant maintains the plea of prescription should be sustained on the ground that since the cutting of the trees took place between June of 1952 and January of 1953 and no suit was filed until February 16, 1954, that more than one year had elapsed and the action would be barred by limitation. He argues that this action sounds in tort....
* * * * * *
This case is somewhat similar to that of Transportation Equipment Co. v. Younger Bros., La.App. [1948], 34 So.2d 347. In this last case the plaintiff sued for the balance due for altering and rebuilding a tank trailer. The defendant reconvened for damages for the loss of the tank, claiming it exploded due to negligence of the employees of the plaintiff while it was being repaired. The plaintiff plead the prescription of one year to the reconventional demand, maintaining it was based in tort. The Court took the position that the demand was based on a contract, even though the acts complained of were due to negligence. It was further held that where a contract is breached by negligence, the party damaged may bring his suit either on breach of the contract or on the tort.
* * * * * *
The ruling of the trial court upon the plea of prescription was correct.
Oberling v. Miller, 86 So.2d 748 (La.App. 1 Cir.1956).
The Oberling decision is consistent with general tort law:
Where a claim for breach of contract exists, plaintiff is entitled to plead it and assert the statute of limitations applicable to actions for breach of contract even where an action for conversion arising out of the breach would also lie. However, at trial, plaintiff has to prove that defendant breached some contractual duty above and beyond the general duty not to convert another's property in order for the statute of limitations applicable to actions for breach of contract to apply. [Emphasis added] 54 C.J.S. Limitations of Action, Sec. 52 at p. 87.
In Parro v. Fifteen Oil Co., 26 So.2d 30, 32 (La.App. 1 Cir.1946) no such special contractual duty was found. In Parro plaintiff sued his mineral lessee for damage to his property caused by salt water and waste oil discharge. The court found that no special contractual obligation was breached and held that the action was subject to the one year tort prescriptive period:
In the examination of the entire petition to determine whether or not plaintiff bases his cause of action on the contract of lease, or on one of tort, we must bear in mind the distinction between the two actions. The action on a contract flows from a breach of a special obligation, while an action in tort flows from the violation of a general duty. [Emphasis added]. After a careful review and study of plaintiff's entire petition, we are fully convinced that plaintiff based his action in tort.[[2]] His complaint is such that it could be made by any property owner against a defendant who permits salt water, waste oil, and other refuse to flow as alleged in his petition. His cause of action is not the kind that is open to him because of his contract of mineral lease with the defendant. [Emphasis added]. The contention of plaintiff that the action is based on a contract is a belated one, purely an after thought on his part. Therefore we are satisfied that the prescriptive period applicable is that of one year as provided for by Civil Code Article 3536. Parro, supra, at p. 32.
*590 The instant case is distinguishable from Parro. The developers did not have the same rights against Murphy as they had against third parties generally. They could not sue Murphy for removing dirt as they could any other third party. They could only sue Murphy for removing more than one acre in violation of the terms of the contract.[3] The amount of dirt was the very essence of the contract. As Shakespeare's Portia would have said: "One acre, no more, no less." Therefore, the removal of the excess dirt by Murphy not only violated a general duty as in Parro, it violated a specific contractual provision which gave rise to a specific contractual duty. The parties to a contract have the right to elevate a general duty to contractual status by including that duty as a provision of the contract. Stephens v. International Paper Co., 542 So.2d 35 (La.App. 2 Cir.1989) is consistent with this Court's view of the law.
In Stephens the plaintiff entered into a timber contract with the defendant International Paper company. The contract allowed the defendant to cut and harvest timber on plaintiff's land. The contract also provided for the grant of a servitude allowing defendant ingress, egress and regress across the plaintiff's lands. Plaintiff alleged that on numerous occasions the cutting crew left two gates open allowing portions of plaintiff's cattle herd to escape. Some were recovered at substantial expense and others were never recovered. Plaintiff sued the defendant for the lost cattle and expenses. He founded his claim both in contract and in tort. The contract required that the defendant "use reasonable care ... so as to minimize damage to any timber not covered [by the contract.]" The court found that the contractual provision relating to this duty of care regarding timber did not apply to the missing cattle:
The only provision in the contact between the plaintiff and the defendant relating to the duty of care owed by the defendant is found in paragraph nine. It provides, in pertinent part, as follows:
9. PURCHASER agrees to use reasonable care and to conduct its operations hereunder in an orderly manner so as to minimize damage to any timber not covered hereby.... [Emphasis added]
Plaintiff has not alleged, of course, that any damage was done to the remaining timber on the land. His allegation of damage relates to the loss of his cattle and damage done to the fences and gates. There is no provision in the contract which relates to these damages. [Emphasis added] Nevertheless, the plaintiff contends that he may maintain this action in contract because the defendant owed him an implied obligation to perform the contract in a good and workmanlike manner, in default of which the defendant was answerable in damages for any ensuing losses. Tiger Well Service, Inc. v. Kimble [Kimball] Production Company, 343 So.2d 1153 (La.App. 3rd Cir. 1977).
In Tiger Well Service, Inc., supra, the court cited LSA-C.C. art. 2729 and former Article 1930 (which was replaced by Article 1994 in the obligations revisions which were effective January 1, 1985). It stated that "under the cited articles every contract for work or services" carries with it the implied obligation to carry out its terms in a workmanlike manner. [Emphasis added]
Bedsole argues, with validity, that the instant contract is a contract of sale. It *591 is not a contract "to do," and therefore does not contain such an implied obligation to perform in a good and workmanlike manner. [Emphasis added]. Plaintiff's action "ex contractu" cannot be maintained under paragraph 9 of the contract, or through any implied obligation arising therefrom.
We also note that the instant contract contains a provision by which the seller (the plaintiff) granted the purchaser (the defendant) rights of ingress, egress, and regress, over across and upon the lands of the seller. The evidence shows a representative of the defendant approved the path through Tract A for this access.
Such a timber cutting contract does not only involve the sale of Timber. The transaction also requires that the purchaser of the standing timber be allowed to go onto the seller's land to cut or move the timber covered by the contract. The right of ingress, egress, and regress granted in the contract in the purchaser's favor by the seller is a necessary privilege without which the conveyance would be useless to the purchaser. Clark v. Weaver Brothers Realty Corporation, 197 La. 63, 200 So. 821 (1941).
* * * * * *
Although the law requires that one who is granted a servitude must use it in a proper manner, this is a general duty rather than a specific contractual duty or obligation assumed by the owner of the servitude; the breach of a general duty results in an action for damages "ex delicto," the breach of a special duty contained in the contract may result in an action for damages ex contractu. [Emphasis added].
The classic distinction between damages "ex contractu" and damages' ex delicto" is that the former flows from the breach of a special obligation contractually assumed by the obligor, whereas the latter flows from the violation of a general duty owed to all persons. Davis v. LaBlanc [Le Blanc], 149 So.2d 252 (La.App. 3rd Cir.1963).
In the instant case, we find that the plaintiff's action against the defendant did not arise from the breach of a special obligation contractually assumed by the defendant. The only special obligation assumed by the defendant was the obligation set forth in paragraph 9 of the contact, which is quoted above. We cannot say that the damages sought were of a nature that the parties could have contemplated them being recoverable under the contract. The defendant did not contractually assume any special obligation pertaining to the duty of care to be exercised in the use of the servitude.
The action brought by the plaintiff pertains only to a general duty found in the law and sounds only in tort. Stephens, supra, at 38 & 39.
The Stephens case is distinguishable from the instant case on two grounds:
1. Plaintiffs' claim in the instant case involves a specific contractual provision fixing the amount of dirt to be removed that creates a contractual duty in addition to that imposed by general tort law, which duty Murphy breached. In Stephens there was a specific contractual duty of care, but it was not breached. Only a separate general duty of care was breached.
2. The contract in the instant case was not just a contract of sale. It was also a contract "to do" (See Stephens, supra, at 38) because it required Murphy to excavate the lake.
II. There Was No Manifest Error In The Findings Of Fact of The Trial Court
Applying the manifest error standard of Rosell v. ESCO, 549 So.2d 840 (La.1989) we find no error in the findings of fact of the trial court. Following that standard we cannot say that the trial court was wrong in calculating the amount of excess fill that was taken by Murphy.[4]
Nor can we say that the trial court abused its discretion in calculating the *592 amount of damages awarded. No hard and fast rule can be laid down for the measurement of damages caused by the removal of dirt from the property of another. Gallo v. Sorci, 221 So.2d 570, 576 (La.App. 4 Cir. 1969).
In the instant case the parties had entered into four successive contracts, including the contract that forms the basis of the appeal, in which a price of $25,000 per acre of fill was established.[5] As that value was arrived at by the parties themselves in a consistent series of four freely bargained for, arms-length transactions, we cannot say that the trial court was unreasonable in adopting that value.
Accordingly the judgment of the trial court is affirmed.
AFFIRMED.
NOTES
[1] Amite Gravel & Sand Co. v. Roseland Gravel Co., Ltd., 148 La. 704, 87 So. 718 (1921); Antoine Lumber Co., Ltd. v. Southern Bag & Paper Co., 171 La. 696, 131 So. 852 (1930); Sanders De Hart v. Continental Land & Fur Co., Inc., 205 La. 569, 17 So.2d 827, 834 (1944); Boswell v. Roy O. Martin Lumber Co. Inc., 363 So.2d 506 (La. 1978); Liles v. Barnhart, 152 La. 419, 93 So. 490 (1922); Gallo v. Sorci, 221 So.2d 570 (La.App. 4 Cir.1969); Reymond v. Sumrall, 67 So.2d 925 (La.App. 1 Cir.1953).
[2] Cf. Poole v. Winwell, 381 So.2d 926, 928 (La. App. 3 Cir.1980) where the plaintiff also brought a claim against his mineral lessee for damage caused by salt water discharge. In Poole the court allowed the plaintiff to recover, but limited that recovery to damage caused to adjoining lands that were not subject to the mineral lease. The adjoining lands were covered by a specific contractual provision which held the lessee liable for any damage done to them.
[3] In Section 7 of the September 28th contract, the following provision is made:
In consideration of said work to be performed by Contractor, Contractor shall receive, [sic] the fill which it excavates and removes form [sic] Owner's property, and Contractor shall pay to St. Bernard Home Development and Ridge Oak Development the sum of $25,000.00 for the right to remove the fill in Oak Ridge Park Subdivision being a total of 1 acres, [Emphasis added] of the total sum of $25,000.00; [sic] $15,000.00 dollars to be paid to St. Bernard Home Development and $10,000.00 dollars is to be paid to Ridge Oak Development, Inc., as shown further in the survey attached "Exhibit B" showing the expansion of Acorn Lake dated April 8, 1990 by Steven V. Estopinal, P.E., P.L.S.
This Court agrees with the trial court's interpretation of this provision and the contract as a whole which is implicit in the decision of the trial court.
[4] Plaintiffs asserted claims in the trial court and in their brief against Cecile Leitz Murphy individually and for attorney's fees. As the plaintiffs did not appeal the adverse rulings of the trial court on those claims, nor did they answer this appeal, we cannot consider those claims. LSA-C.C.P. art. 2133.
[5] The contracts did not specifically state: "$25,000 per acre of fill." However, the first contract called for 5 acres for $125,000; the second contract called for 3 acres for $75,000; the third contract called for 2 acres for $50,000; and the fourth contract which is the object of this appeal called for 1 acre for $25,000. It is a simple matter of dividing the dollar amount in each contract by the number of acres to reach a consistent rate of $25,000 per acre. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1802022/ | 618 So.2d 874 (1993)
The ROMAN CATHOLIC CHURCH OF the ARCHDIOCESE OF NEW ORLEANS and United States Fidelity & Guaranty Company
v.
LOUISIANA GAS SERVICE COMPANY and Western Preferred Casualty Company.
No. 92-C-0071.
Supreme Court of Louisiana.
May 24, 1993.
*875 Leonard A. Young, Peter B. Hays, III, Bienvenu, Foster, Ryan & O'Bannon, New Orleans, for applicant.
William H. Howard, III, Sallye G. Webb, Phelps Dunbar, New Orleans, for respondent.
DENNIS, Justice.[*]
This case presents the question of what is the proper measure of damages when recovery is sought for the negligent damage to a building, when the property can be repaired or restored, the cost of replacing the property in its original condition is not disproportionate to the value of the property before the injury, there is reason personal to the owner for restoring the original condition and the owner has, in fact, made repairs fully restoring the property.
FACTS
On December 16, 1976, the Department of Housing and Urban Development (hereinafter referred to as "HUD"), in consideration for cancellation of a $3,300,000.00 promissory note, acquired ownership of the Villa D'Ames Apartment complex in Marrero, Louisiana. In 1977, HUD entered into an agreement with the Roman Catholic Church of the Archdiocese of New Orleans (hereinafter referred to as the "Archdiocese") to manage the Villa D'Ames complex. From 1977 to 1980 the complex, which provided federally subsidized housing to 200 low income families, was substantially renovated at a cost of approximately $3,000,000.00.
After managing the complex for almost five years, the Archdiocese agreed to purchase the property without public bid. The sale was effected in August 1981 for $1,700,000.00, subject to the resolutory condition that should the Archdiocese fail to continuously maintain the complex for low income rental for 200 families during the next fifteen years, the property would revert to HUD. The Archdiocese purchased the property on these terms in order to further its interest in providing housing for poor families affiliated with its newly placed parish church.
On the night of December 24, 1983, a fire occurred at the Villa D'Ames apartment complex. The complex consisted of 13 detached apartment buildings as well as an office/laundry building and a community building. The fire was restricted to building 3 of that complex.
At the time of the fire the actual owner of the complex was Villa D'Ames, Inc., a wholly-owned, non-profit subsidiary corporation of the Archdiocese. The property was insured by United States Fidelity and Guaranty Company, (hereinafter referred to as "USF & G"), with Villa D'Ames, Inc. as a named insured under the USF & G policy.
The defendant, Louisiana Gas Service Company (hereinafter referred to as "Louisiana Gas") supplied natural gas to the apartments in the complex. On the evening of December 24, 1983, there was a hard freeze, which caused a malfunction of the natural gas regulating equipment utilized by Louisiana Gas to supply gas to the apartment units. As a result of this malfunction, dangerous amounts of gas surged into the apartments, eventually causing the fire and resulting damages.
Suit was filed by Villa D'Ames, Inc., the Archdiocese, and USF & G against Louisiana Gas for recovery of the damages sustained as a result of the fire.
Prior to trial, Louisiana Gas acknowledged that it was legally liable for the damages sustained by plaintiffs as a result of the fire in question. The case went to trial solely to determine the quantum of damages. Regarding the only issue before this court, the trial court ruled that since *876 the cost of restoration exceeded the market value of the building before the damage, plaintiffs' recovery was limited to the amount expended to restore the building to its pre-fire condition reduced by depreciation. The plaintiffs appealed. The Court of Appeal affirmed, 592 So.2d 14 (La.App. 5th Cir.1991). We granted certiorari, 592 So.2d 1321 (1992).
ISSUE
The single issue presented is whether the lower courts erred in limiting plaintiffs' damages to replacement cost, less depreciation, rather than awarding the plaintiffs the full cost of restoration that had been reasonably incurred.
ANALYSIS
Every act of man that causes damage to another obliges him by whose fault it happened to repair it. La.Civ.Code art. 2315. One injured through the fault of another is entitled to full indemnification for damages caused thereby. Coleman v. Victor, 326 So.2d 344 (La.1976); Jordan v. Travelers Ins. Co., 257 La.995, 245 So.2d 151 (1971). In such a case, "[t]he obligation of defendant ... is to indemnify plaintiffto put him in the position that he would have occupied if the injury complained of had not been inflicted on him." Coleman v. Victor, supra, at 346, quoting, Lambert v. American Box Co., 144 La. 604, 613, 81 So. 95, 98 (1919). See also, Ayala v. Bailey Elec. Co. Inc., 318 So.2d 645 (La.App. 4th Cir.1975).
Consequently, "[w]hen property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage...." Coleman v. Victor, supra, at 346. Accordingly, "the measure of damages is the cost of restoring the property to its former condition. In assessing damage to property, generally, courts have considered the cost of restoration as the proper measure of damage where the thing damaged can be adequately repaired." Id. at 346-47, citing Lambert v. American Box Co., supra; Hayward v. Carraway, 180 So.2d 758 (La.App. 1st Cir.1965), writ ref. 248 La.909, 182 So.2d 662 (1966). "[N]o mechanical rule can be applied with exactitude in the assessment of property damage under Article 2315." Coleman v. Victor, supra, at 347, citing Jordan v. Travelers Ins. Co., supra.
These basic precepts have been reaffirmed and strengthened indirectly by the Declaration of the Right to Property of our state constitution. Article I, § 4 of the Louisiana Constitution of 1974, in pertinent part, provides:
"Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property.... Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.... In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss."
Thus, our constitution does not simply require that the owner of condemned or damaged property be compensated with the market value of the property taken and severance damage to his remainder, but that he be "compensated to the full extent of his loss" and "placed in as good a position pecuniarily as [he] enjoyed prior to the taking." State v. Bitterwolf, 415 So.2d 196, 199 (La.1982), quoting State v. Constant, 369 So.2d 699, 702 (La.1979). Accordingly, justice, reason, and the principle of full reparation of Louisiana Civil Code article 2315 require that where an individual's property is damaged unlawfully by a tortfeasor for no good reason, he be compensated at least as fully as when his property is damaged by the state for a public purpose pursuant to the owner's obligation of citizenship to the community. See La. Civ.Code art. 2626.
In contrast with these fundamental principles, some jurisdictions have placed more restrictive limits on when an owner whose property has been tortiously damaged can recover the full cost to repair or restore. Although expressed in differing *877 ways, many of these courts essentially limit the owner's damage to the lesser of cost to repair and diminution in market value caused by the damage. See, e.g., Blanton & Co. v. Transamerica Title Ins. Co., 24 Ariz.App. 185, 188, 536 P.2d 1077, 1080 (1975); Charles v. Rueck, 179 Cal.App.2d 145, 146-48, 3 Cal.Rptr. 490, 491-92 (1960); Kirst v. Clarkson Constr. Co., 395 S.W.2d 487, 493-94 (Mo.Ct.App.1965); Newsome v. Billups, 671 S.W.2d 252, 253-55 (Ky.Ct. App.1984); Stony Ridge Hill Condominium Owners Ass'n v. Auerbach, 64 Ohio App.2d 40, 41, 48, 410 N.E.2d 782, 784, 788 (1979); Mozzetti v. City of Brisbane, 67 Cal.App.3d 565, 576, 136 Cal.Rptr. 751, 757 (1977). Other courts, although applying cost to restore as the appropriate measure of damages in all cases of reparable injury to property, use the fair market value of the property before the injury, rather than the diminution in value, as a ceiling on the damage award. See, e.g., Southern Indiana Gas & Electric Co. v. Indiana Ins. Co., 178 Ind.App. 505, 517, 383 N.E.2d 387, 395 (1978); "L" Invs., Ltd. v. Lynch, 212 Neb. 319, 321, 322 N.W.2d 651, 653 (1982); Stratford Theater, Inc. v. Town of Stratford, 140 Conn. 422, 424, 101 A.2d 279, 280 (1953). Some of our own courts of appeal have approved such limitations, including a rigid "cost of replacement, less depreciation," test, evoking this court's pointed admonitions that no mechanical rule can be applied with exactitude in the assessment of property damage under Article 2315 and that every case must rest on its own facts and circumstances. Coleman v. Victor, supra at p. 347 and nn. 4 and 5.
Recently, courts and commentators have criticized these types of simplistic tests which require the automatic application of limitations on an owner's recovery of the cost to restore or repair his damaged property. See generally, D. Dobbs, Handbook on the Law of Remedies § 5.1 (1973). "Such ceilings on recovery not only seem unduly mechanical but also seem wrong from the point of view of reasonable compensation. If the plaintiff wishes to use the damaged property, not sell it, repair or restoration at the expense of the defendant is the only remedy that affords full compensation. To limit repair costs to diminution in value is to either force a landowner to sell the property he wishes to keep or to make repairs partly out of his own pocket." Id. at 317. "[R]ules governing the proper measure of damages in a particular case are guides only and should not be applied in an arbitrary, formulaic, or inflexible manner, particularly where to do so would not do substantial justice." Myers v. Arnold, 83 Ill.App.3d 1, 38 Ill.Dec. 228, 233, 403 N.E.2d 316, 321 (1980). "Limiting the costs of repairs to the diminution in value of the property appears to fly in the face of [the rule requiring that the injured party be restored to his former position]. The diminution in value may be slight because the injury is slight as compared to the total property, as evidenced by this case. Undoubtedly, the breaking of some bricks and the bending of several windows may not result in reducing the overall value of an old warehouse, still capable of fulfilling its intended function even with broken bricks. Yet, should we therefore excuse the tortfeasor from any liability?" "L" Invs., Ltd. v. Lynch, 212 Neb. 319, 322 N.W.2d 651, 656 (1982). "`To hold that appellant is without remedy merely because the value of the land has not been diminished, would be to decide that by the wrongful act of another, an owner of land may be compelled to accept a change in the physical condition of his property, or else perform the work of restoration at his own expense.' "Heninger v. Dunn, 101 Cal. App.3d 858, 863, 162 Cal.Rptr. 104, 108 (1980), quoting Dandoy v. Oswald Bros. Paving Co., 113 Cal.App. 570, 572-73, 298 P. 1030, 1031 (1931).
In recognition of the need for a more flexible approach, particularly with respect to damages to immovable property, the Restatement (Second) of Torts provides, in pertinent part, that whenever there is injury to land, damages should include "the difference between the value of the land before the harm and the value after the harm, or at [the owner's] election in an appropriate case, the cost of restoration that has been or may be reasonably incurred...." Restatement (Second) of *878 Torts § 929 (1977). The official comment on this section indicates that (i) costs of restoration are ordinarily allowable as the measure of damages (ii) but that courts will use diminution in value when the cost of restoring the land to its original condition is "disproportionate" to the diminution in value(iii) "unless there is a reason personal to the owner for restoring the original condition." Id. § 929, comment b. In the latter case, the damages will ordinarily include the amount necessary for repairs, even though this amount might be greater than the total value of the property. Id.; C. Chomsky, Of Spoil Pits and Swimming Pools: Reconsidering the Measure of Damages for Construction Contracts, 75 Minn. L.Rev. 1445, 1481-82 (1991).
Increasingly, courts in Louisiana and elsewhere have articulated standards approximating the Restatement (Second) of Torts provisions. Reasons "personal to the owner" frequently are pointed to as justification for allowing high damage awards, often in excess of diminution in market value. See, e.g., Maloof v. United States, 242 F.Supp. 175, 183-85 (D.Md.1965); G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379, 1387 (Alaska 1974); Myers v. Arnold, 83 Ill.App.3d 1, 38 Ill. Dec. 228, 230, 233, 403 N.E.2d 316, 318, 321 (1980); Samson Constr. Co. v. Brusowankin, 218 Md. 458, 471, 147 A.2d 430, 438 (1958); Rector of St. Christopher's Episcopal Church v. McCrossan, 306 Minn. 143, 144, 150, 235 N.W.2d 609, 610, 613 (1975); Morris v. Ciborowski, 113 N.H. 563, 565, 311 A.2d 296, 297 (1973); Berg v. Reaction Motors Div., 37 N.J. 396, 405, 181 A.2d 487, 495 (1962); Adcock v. Rollins Protective Serv. Co., 1 Ohio App.3d 160, 160-61, 440 N.E.2d 548, 549 (1981); Anderson v. Bauer, 681 P.2d 1316, 1324 (Wyo.1984). See also Mayer v. McNair Transport, 384 So.2d 525 (La.App. 2d Cir.1980) (Finding of the jury, assessing the loss of a large, older, and well-kept home, inhabited by older couple for approximately 30 years, at a sum greater than the market value, was not in error); Fortson v. Louisiana Power & Light Co., 509 So.2d 743 (La.App. 3d Cir.1987) (No abuse of discretion in awarding full replacement cost with no deduction for depreciation for entertainment equipment destroyed by sudden power surge since equipment had a particular value to the plaintiff due to its appearance); Emerson v. Empire Fire and Marine Ins. Co., 387 So.2d 1238 (La.App. 1st Cir.1980), writ granted 392 So.2d 669, and amended to augment the award, 393 So.2d 691 (1981) (loss of experimental research records, which had no market value at all, but an "intrinsic value to the owner," are recompensable at the "actual value of the property to the person sustaining the loss," relying upon Lack v. Anderson, 27 So.2d 653 (La.App. 2d Cir.1946) and Mosely v. Sears, Roebuck and Co., 167 So.2d 408 (La.App. 1st Cir.1964)); French Jordan, Inc. v. Oilfield Sales & Service, 439 So.2d 523 (La. App. 1st Cir.1983) (Holding that depreciation should not be applied due to the particular nature of the damaged property); and historically relevant, Aetna Ins. Co. v. Palao, 263 So.2d 394 (La.App. 4th Cir.1972) (Awarding cost of restoration without deduction for depreciation because to prove depreciation would be very impractical under the circumstances); Hayward v. Carraway, 180 So.2d 758 (La.App. 1st Cir.1965) (awarding, due to the unique "historic, architectural and esthetic value," the full cost of restoring mantels vandalized in Belle Helene plantation when replacements could have been fashioned of salvaged materials); Lambert v. American Box Co., 144 La. 604, 81 So. 95 (1919) (Allowing recovery of a newly constructed "gallery" when the one destroyed was several years old); Ayala v. Bailey Elec. Co., Inc., 318 So.2d 645 (La.App. 4th Cir.), writ issued, 322 So.2d 770 (1975) and dismissed on joint stipulation (holding plaintiff entitled to the full cost of repairing her building damaged by defendant with no deduction for depreciation where the value of the property is not substantially enhanced by the repairs); Williams v. Gallagher Transfer & Storage Co., Ltd., 170 La.461, 128 So. 277 (1930) (Allowing recovery at the cost of replacement of a hand carved bedroom set with no deduction for depreciation where there was no ascertainable market value). The "personal reasons" usually are the owners' desires to enjoy and live in their homes, but *879 several courts have accepted "special reasons" related to the non-homestead use of property. See, e.g., Samson Constr. Co. v. Brusowankin, 218 Md. at 462, 147 A.2d at 432-33; Morris v. Ciborowski, 113 N.H. at 564, 311 A.2d at 298; Berg v. Reaction Motors Div., 37 N.J. at 399, 406, 181 A.2d at 489, 492; Adcock v. Rollins Protective Serv. Co., 1 Ohio App.3d at 160, 440 N.E.2d at 549; Anderson v. Bauer, 681 P.2d at 1324.
However, the courts often state that some limits exist to the amount that can be recovered: e.g., the repair must be "practical" and "reasonable," Heninger v. Dunn, 101 Cal.App.3d 858, 864, 162 Cal. Rptr. 104, 108 (1980); Rector of St. Christopher's Episcopal Church v. McCrossan, 306 Minn. at 145-46, 235 N.W.2d at 611; Adcock v. Rollins Protective Serv. Co., 1 Ohio App.3d at 160-61, 440 N.E.2d at 549; expenditures are allowable unless "wholly disproportionate to the value of the land," Myers v. Arnold, 83 Ill.App.3d at 6, 403 N.E.2d at 321; or "disproportionate to actual injury," Moulton v. Groveton Papers Co., 114 N.H. 505, 510, 323 A.2d 906, 911 (1974); or "economically wasteful," Board of County Commissioners v. Slovek, 723 P.2d 1309, 1316 (Colo.1986). But extensive damages are often awarded as cost of restoration. Morris v. Ciborowski, 113 N.H. at 564-65, 311 A.2d at 298-99 ($16,000.00 to replace trees); Berg v. Reaction Motors Div., 37 N.J. at 399-401, 181 A.2d at 491-92 ($25,605.00 for structural damage from jet engine testing although diminution in value was $3,700.00); G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d at 1387 ($12,550.00 for restoring vegetation to a few acres of tract purchased for $4,000.00 per acre); Gross v. Jackson Township, 328 Pa.Super. 226, 227-28, 476 A.2d 974, 975-76 (1984) ($9,674.00 for replanting shrubs removed by construction in widening a road); Melton v. United States, 488 F.Supp. 1066, 1069, 1075 (D.D.C.1980) ($90,000.00 to complete a $40,000.00 restoration job); Trinity Church v. John Hancock Mut. Life Ins. Co., 399 Mass. 43, 44 n. 3, 502 N.E.2d 532, 533 n. 3, 536 (1987) ($3.6 million to repair structural damage to an historic church building even though church had no present intention to restore); C. Chomsky, supra at 1485-87.
In only a few cases have courts refused to award the full cost to restore because the expense was truly exorbitant. Heninger v. Dunn, 101 Cal.App.3d at 861, 866, 864, 162 Cal.Rptr. at 106, 109 ($241,257.00 to restore trees and undergrowth "manifestly unreasonable" in relation to land value which increased from $179,000.00 to $184,000.00 because defendant bulldozed unauthorized road on land); Maloof v. United States, 242 F.Supp. at 184-88 (cost to replace vegetation limited to $77,660.00 to approximate but not duplicate actual pre-existing condition); Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604, 608-09 (La.App. 1st Cir.1978), writ ref., 366 So.2d 575 (1979) (owners of one-eighth undivided interest in 550 acres of land injured by toxic waste limited in recovery to the value of their interest, $25,000.00, where cost of restoration sought was $170 million); C. Chomsky, supra at 1484-87.
The teachings of the cases approximating Restatement (Second) of Torts § 929 and its comments, when applied as flexible guides rather than as arbitrary formulae, tend to foster the same goals established by our Civil Code and state constitutional property damage principles, i.e., they tend to compensate the victim to the full extent of his loss and restore him to as good a position as he held prior to the damage. La.Civ.Code art. 2315; La.Const. 1974, Art. I § 4; Coleman v. Victor, supra. Accordingly, we conclude that, as a general rule of thumb, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured *880 only by the difference between the value of the property before and after the harm. Consequently, if a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building.
Applying these precepts, we decide that plaintiffs are entitled to recover from the defendants the full $232,677.00 cost of restoration that has been reasonably incurred. First, the cost of restoring the property in its original condition is not economically wasteful or disproportionate to the value of the property. The value of the apartment complex far exceeds the restoration cost. The complex was acquired by HUD at a cost of $3.3 million, renovated at a cost of $3.0 million, and sold to the Archdiocese for $1.7 million upon the condition that it maintain the complex for 200 poor families for 15 years. Despite the fact that the building destroyed by fire was separate from the other twelve buildings, it contained 16 family units and was a necessary and integral part of the 200 family low income rental project. Under such circumstances, the defendant is not entitled to a credit merely because the Archdiocese has acquired a substantially new unit, presumably with a longer life expectancy than the old. Plaintiff should not be required to finance in part the premature replacement of the housing unit when there is no assurance that this will add to the realizable value of the whole property to which it appertains. An award of full restoration costs might be inequitable in a case where the damaged part was scheduled for early replacement, long before the expiration of the useful life of the whole. Here, however, the damaged building evidently had the same useful life expectancy as the other units in the low rental housing complex. See United States v. Ebinger, 386 F.2d 557 (2d Cir.1967). Second, even if the foregoing reason did not exist, there is a reason personal to the owner for restoring the property to its original condition. The interest of the Archdiocese harmed by the fault of the defendant was not purely financial. The Archdiocese did not purchase the complex as a business investment with an eye towards speculation and does not hold the property solely for the production of income. Its object in acquiring and maintaining the facility was to provide housing for its low income parishioners. Moreover, the continuance of the Archdiocese's ownership and housing mission is conditioned upon its removal of the property from commerce and providing housing for 200 poor families during a fifteen year period. In choosing between the cost of repair measure and some other measure of damages, it is important to know how the property is used and what interest in it is asserted, so that the measure can be adopted that will afford compensation for any legitimate use that the owner makes of his property. See D. Dobbs, supra at § 5.1 p. 315. Finally, even in the absence of either of the foregoing reasons, the plaintiff in the present case is clearly entitled to recover the full cost of restoration because it has, in fact, made the repairs by replacing the building in its original condition.
For the reasons assigned, the judgments of the trial and appellate court are amended to award plaintiffs $232,677.00, instead of $125,338.50, as the reasonable cost of restoring the building. As amended, the judgments below are affirmed.
AMENDED AND AFFIRMED.
NOTES
[*] Cole, J., assigned to participate in the decision of this case argued prior to his retirement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3099773/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-14-00131-CV
IN THE INTEREST OF C.G. Jr., a Child
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2012-PA-02761
Honorable Charles E. Montemayor, Judge Presiding
BEFORE CHIEF JUSTICE STONE, JUSTICE BARNARD, AND JUSTICE MARTINEZ
In accordance with this court’s opinion of this date, the trial court’s judgment is
AFFIRMED.
We order that no costs be assessed against Father as he is indigent.
SIGNED June 25, 2014.
_____________________________
Marialyn Barnard, Justice | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1202902/ | 621 S.E.2d 862 (2005)
275 Ga. App. 781
The STATE
v.
LANE.
No. A05A1666.
Court of Appeals of Georgia.
October 12, 2005.
Richard A. Mallard, Dist. Atty., Keith A. McIntyre, Asst. Dist. Atty., for appellant.
Jackson & Schiavone, Michael G. Schiavone, Savannah, for appellee.
BLACKBURN, Presiding Judge.
The State appeals the trial court's grant of defendant Bernard Lane's motion to suppress in this drug possession case. After officers observed Lane's participation in a controlled drug buy, his vehicle was stopped, and he was charged with possession of marijuana with intent to distribute. He moved to suppress all the evidence found during the traffic stop, arguing that the search of his person and the car was invalid.[1] The trial court agreed and granted the motion. The State argues that probable cause existed to arrest Lane, and therefore the search was justified as incident to a lawful arrest. We agree and reverse.
Where, as here, "the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review." *863 Vansant v. State.[2] Lane argues for the application of the "any evidence" standard, which applies when the ruling below involves a mixed question of fact and law. State v. Sanders.[3] We utilize the "any evidence" standard when there is conflicting evidence as to critical facts. See, e.g., State v. Ellison;[4]Sanders, supra. Where, as here, there is no conflicting evidence as to critical facts, the de novo standard is appropriate. Vansant, supra (reserving the "clearly erroneous" standard for rulings on motions to suppress where there are disputed facts).
So viewed, the record shows that police officers set up a controlled buy of marijuana from Lane's vehicle using a confidential informant. Prior to the sale, the officers obtained the tag number of Lane's vehicle, along with a description of the car and of its occupants. The officers also copied down the serial numbers from the money to be used for the purchase.
Lane's car was in constant visual contact for the entire transaction. The confidential informant was wired and in radio contact with an observing field officer. The field officer saw the confidential informant make the buy from the passenger in Lane's car. The officer then followed the confidential informant back to the police station to verify the sale and notified other officers in the field. The remaining officers stopped Lane's car using the tag number and description provided.
Once the car was stopped, officers approached the vehicle and asked Lane and his passenger to step out of the car. A substantial amount of marijuana fell out of the passenger's pants leg when he exited the vehicle. The officers then patted down Lane and his passenger for weapons. Having felt what he suspected to be a large number of bills in his pocket during the pat-down, the officer asked Lane to show him the money. One of the bills used in the controlled buy was found in the money Lane removed from his pocket. While the police found no weapons or drugs on Lane, they did find flakes and seeds of suspected marijuana sprinkled throughout his car. Lane was immediately arrested.
Lane sought to suppress all evidence found, including any marijuana, as fruit of a poisonous search of his person and car. At the hearing, no cross-examination was elicited on any of the above critical facts. The trial court granted the motion, but did not set forth its reasons for doing so.
On appeal, the State contends that the officers had sufficient probable cause to arrest Lane, and therefore the search was valid as incident to a valid arrest. See Parker v. State[5] (search is valid where incident to valid arrest). We agree that the record reveals a more than adequate basis for the arrest. Before the stop occurred, the officers visually witnessed a controlled buy of marijuana from the passenger in Lane's car using a wired confidential informant. Lane's car was in constant visual contact and was pulled over using both a tag number and a description. This constitutes sufficient probable cause to arrest someone for being involved in the distribution of marijuana. See Whitehead v. State.[6] See also Dupree v. State[7] (finding that evidence of illegal drug possession provided by confidential informant and independently verified by police justified warrantless stop and search of vehicle); Vaughn v. State[8] (finding that prior sales of illegal drugs provided probable cause for arrest and search of defendant).
The fact that Lane was searched before his arrest, instead of after, does not affect the validity of the search. As the United States Supreme Court has explained, "[w]here the *864 formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa." Rawlings v. Kentucky.[9] That is because the probable cause for the arrest existed before the arrest, and the arrest did not rely on the search for its validity. Id. at 111, n. 6, 100 S. Ct. 2556. See also Collier v. State;[10]Satterfield v. State.[11]
"Although, as a matter of judicial economy, we will affirm an order under the `right for any reason rule,' we will generally only do so when the judgment may be sustained upon a legal basis apparent from the record which was fairly presented in the court below." Bailey v. Hall.[12] We cannot find a legal basis here, because the unrebutted testimony on all critical facts established probable cause to arrest, thus making the search valid as incident to a valid arrest.
Judgment reversed.
MILLER and BERNES, JJ., concur.
NOTES
[1] Lane does not contest the propriety of the stop itself.
[2] Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).
[3] State v. Sanders, 274 Ga.App. 393, 394, 617 S.E.2d 633 (2005).
[4] State v. Ellison, 271 Ga.App. 898(1), 611 S.E.2d 129 (2005).
[5] Parker v. State, 218 Ga.App. 770, 771(1), 463 S.E.2d 70 (1995).
[6] Whitehead v. State, 258 Ga.App. 271, 273(1)(a), 574 S.E.2d 351 (2002).
[7] Dupree v. State, 232 Ga.App. 573, 574(1), 502 S.E.2d 511 (1998).
[8] Vaughn v. State, 173 Ga.App. 716, 717(1), 327 S.E.2d 747 (1985).
[9] Rawlings v. Kentucky, 448 U.S. 98, 111(II)(C), 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).
[10] Collier v. State, 177 Ga.App. 217, 219, 338 S.E.2d 724 (1985).
[11] Satterfield v. State, 251 Ga.App. 141, 144, 553 S.E.2d 820 (2001).
[12] Bailey v. Hall, 267 Ga.App. 222, 223, n. 1, 599 S.E.2d 226 (2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1201181/ | 735 P.2d 53 (1987)
In the Interest of S.R. (06/16/80) and B.R. (03/24/79),
G.R., Defendant and Appellant.
No. 20866.
Supreme Court of Utah.
March 27, 1987.
*54 Dennis F. Olsen, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Diane W. Wilkins, Asst. Atty. Gen., Salt Lake City, for State.
HOWE, Justice:
Appellant seeks reversal of a juvenile court decree permanently terminating her parental rights and a subsequent order denying her a rehearing.
Appellant is the mother of two minor sons, B.R. (born March 24, 1979) and S.R. (born June 3, 1980). In October 1976, she was referred to the Salt Lake County Detoxification Center (Detox Center) by the University Medical Center because of her drug use. She was again referred by her attorney to the Detox Center in October 1977, and she spent seven days there.
The Utah Division of Family Services opened a voluntary protective supervision case on appellant and her two children in 1980. In 1981, the Division received several complaints, including one submitted in July 1981 by Kelly Myells, who was both a friend of appellant's and employed by Youth Services, regarding appellant's inability to care for B.R. and S.R. due to her continued drug use. After appellant was admitted to Holy Cross Hospital for a drug overdose in October 1981, the Division filed a petition in the Second District Juvenile Court, alleging that B.R. and S.R. were neglected. This petition specifically alleged that (1) during both March and October of 1981, appellant was observed in an unconscious condition and was unable to supervise her children; (2) she abused drugs; (3) she was emotionally unable to care for her children; (4) she had inadequate facilities in which to care for the children; and (5) she was financially and physically unable to care for her children. A trial was held on January 15, 1982, where the court found all of the allegations of the Division's petition to be true and placed the boys in the custody and guardianship of the Division.
At the disposition hearing, also held on January 15, 1982, the juvenile court ordered appellant to comply with a treatment plan outlining the requirements necessary for her to obtain the return of B.R. and S.R. This plan required her to (1) participate in a drug treatment program, (2) demonstrate her abstinence from drugs by completing a urine testing program, and (3) obtain adequate housing for herself and the boys. Appellant made only one initial visit to the drug treatment center and appeared to be on drugs when Dr. Michael DeCaria gave her a psychological examination. She made no additional attempts to comply with the treatment plan.
The juvenile court held several review hearings to gauge appellant's progress. In April 1982, she indicated at a review hearing that she was now willing to adhere to *55 the treatment plan set forth on January 15, 1982. On August 5, 1982, she met with a rehabilitation counselor from the State Division of Rehabilitation Services who helped her enroll in classes at Utah Technical College. Appellant regained custody of B.R. and S.R. in September 1982, and at a review hearing in October 1982, the juvenile court found that her situation was improving. However, beginning in January 1983, she was again often observed in an intoxicated or "high" condition. Social workers from the Division of Family Services met with her on January 25, 1983, and March 8, 1983, and both times she was incoherent and appeared to be intoxicated. Another social worker, Delynn Anderson, met with her on several occasions during which she appeared to be on drugs. Her grades at Utah Technical College were extremely poor her second quarter. The juvenile court reviewed the case on April 14, 1983, and noted that appellant was back on drugs and had refused to submit to urine tests or enter a detoxification program. She was arrested for public intoxication while on drugs on April 21, 1983, and placed in the Detox Center.
At another review hearing on May 3, 1983, the juvenile court again removed B.R. and S.R. from appellant's custody, placing them in the custody of her parents, and ordered appellant to comply with a new treatment plan. The second treatment plan required her to (1) successfully complete a sixty-day drug treatment program, (2) undergo a psychological examination, (3) undergo therapy for as long as necessary until the therapist recommended that she could provide a safe home and environment for the boys, (4) complete a ten-week parenting class with at least 80 percent attendance, (5) submit to six months of regular, three-times-a-week urine testing following her completion of the drug treatment program to verify her abstinence from drugs, and (6) have supervised regular visits with her boys to demonstrate her ability to comprehend and deal with their needs.
Appellant made some effort to comply with the second treatment plan. She entered the House of Hope, a drug and alcohol treatment center, for a sixty-day drug treatment program on May 20, 1983. Although she was temporarily discharged for thirty days due to her continued use of drugs during treatment, she completed the program on September 29, 1983. Her House of Hope counselor testified that if appellant began using drugs again, she would not be capable of stopping on her own. The counselor also testified that although appellant had completed the sixty-day time period, she had not successfully completed all of the counseling that the program had for her and would probably not remain drug free.
The only other requirement of the second treatment plan appellant completed was the psychological examination. Her first attempt to fulfill this requirement occurred on November 3, 1983, when she refused to continue with the examination because the attending psychologist, Dr. Liz McGill, said appellant exhibited symptoms of current drug use. Appellant's psychological examination was completed November 18, 1983, by Dr. DeCaria and showed that she was more rational then than at the time of Dr. DeCaria's first evaluation of her in February 1982. Appellant completed only the first two requirements of the second treatment plan even though she was repeatedly reminded that successful completion of the entire plan was necessary before she could get her children back.
On November 13, 1983, appellant was treated at Cottonwood Hospital for a barbiturate overdose. By her own admission, she took drugs up until June 1984. At trial, July 18-26, 1984, she claimed to have been drug free since July 1, 1984, but there were no urine tests taken during that time to corroborate this assertion even though such tests were ordered under the juvenile court's second treatment plan. The last urine test she submitted to was taken on June 1, 1984, and showed the presence of drugs.
The two boys remained with appellant's parents until September 26, 1983, when they were placed in the Children's Center. At that time, both of them were given a psychological evaluation by Agnes Plenk, a psychologist at the Center, and were classified *56 as emotionally depressed, negative, unresponsive, and nonproductive. Appellant was scheduled to visit them on a regular and consistent basis, one to two hours at a time, and attend a parenting session weekly with members of the Center staff. She was informed of the boys' need to have regular, consistent visits from her if they were to improve to a point where they could return to her; yet her visits were irregular, and she was often tardy or absent. When appellant did visit, she did not always exhibit normal warmth and concern for the children. After her visits, both boys would sometimes "soil their pants, whine; and become withdrawn." Also, appellant was sometimes on drugs during her visits, arriving incoherent and weepy and having difficulty walking.
On February 1, 1984, the juvenile court entered an order restricting appellant's visits with her boys to four hours on Sundays. The day and time of the visits were agreed to by her. However, after only one restricted visit, which was not during the appropriate hours, the day was changed to Wednesdays, then to Thursdays, and finally to Fridays in an effort to accommodate her.
In April 1984, a petition was filed by the Division in the juvenile court to permanently terminate appellant's parental rights to the two boys because of her unfitness, pursuant to U.C.A., 1953, § 78-3a-48(1)(a). Several expert witnesses testified at the trial on the petition that her conduct was seriously detrimental to the boys. B.R. was very depressed and lonely, and he spoke only in a monotone voice. He was distrustful of his own ability and fearful. S.R. was unusually attached to his big brother, B.R., depressed and particularly negative. After six months in the Children's Center, both boys showed substantial improvement in their emotional and behavioral conduct. B.R. learned to express himself verbally, began to reach out to his peers, and showed a good overall growth development. S.R. became more outgoing and learned to get along with others. Expert witnesses also testified that the boys' conditions would drastically regress if they were returned to appellant's custody. In its findings of facts, the court found appellant to be unfit to maintain her parental rights because of her conduct and condition and terminated her parental rights as of January 21, 1985.
On February 22, 1985, appellant filed a timely petition asking the juvenile court to notice an improvement in her condition. Specifically, her petition alleged that she was no longer using drugs and that this fact entitled her to a new hearing. After a hearing on appellant's petition, the court denied the petition on March 12, 1985, because she failed to produce any new evidence in existence either at the time of trial or at the time of the hearing on her petition.
I.
A juvenile court may terminate parental rights if the court finds clear and convincing evidence of a parent's unfitness. In re J.P., 648 P.2d 1364 (Utah 1982). Furthermore, this Court has held that the parent's conduct or condition must be such that it cannot be corrected, after notice and opportunity, with reasonable efforts of assistance. Interest of Walter B., 577 P.2d 119 (Utah 1978). Finally, we will disturb the findings and conclusions of the juvenile court only if the evidence clearly preponderates against the findings as made or the court has abused its discretion. See State in the Interest of E.B. v. J.T., 578 P.2d 831 (Utah 1978).
In the instant case, the juvenile court found that appellant, by her continued and unchanging conduct, had demonstrated that she was unfit to maintain her parental rights to her children. The court's finding was based on the uncontroverted evidence of appellant's ongoing drug abuse, her conduct's detrimental effect upon the children, and evidence that she had not complied with requirements specified on two separate occasions by the juvenile court as conditions precedent to her regaining custody.
Although appellant does not seriously contest the court's finding that she had been unfit to care for her children, she contends that before the court could permanently *57 terminate her rights, it had to find that her condition was permanent. She bases her argument on our decision in In re Castillo, 632 P.2d 855 (Utah 1981), where it was found that the natural mother needed constant care and treatment and was incapable of functioning outside the confines of a nursing home. The Court in terminating the natural mother's rights found that her condition was permanent and irreversible and prevented her from caring for her children now and in the foreseeable future. Id. at 857. Appellant claims that her condition is not permanent and that there was evidence of her efforts, albeit inconsistent, to change her habits.
Appellant misstates the tests. The State is not required to show that the parent's conduct or condition is permanent, but only that the conduct or condition alleged to be seriously detrimental to the child cannot be corrected by reasonable efforts. Interest of Walter B., 577 P.2d 119 (Utah 1978). See In the Interest of J.C.O. and E.J.O., 734 P.2d 458 (1987).
After careful review of the facts, it is clear that appellant's conduct and condition were seriously detrimental to B.R. and S.R. All experts agreed that it would be dangerous to the boys' fragile condition to return them to their mother. They also agreed that no significant bonding had occurred between mother and children. There is abundant evidence that both the Children's Center and the Division over a period of twenty-seven months made more than reasonable efforts to assist appellant to comply with the treatment plans prescribed by the juvenile court so that she could regain custody of her children. Therefore, the court properly exercised its authority and discretion by finding and ordering that appellant's parental rights should be terminated. We are mindful that deprivation of parental rights is drastic action. Yet at the same time, the lives and futures of two children are in limbo, and their interests, too, must be considered and hopefully some permanency and stability found for them.
II.
Appellant contends that she was entitled to a rehearing under U.C.A., 1953, § 78-3a-46 because she made a timely request based on new evidence which would influence the juvenile court's decision terminating her parental rights. Specifically, she states that the order of termination should be reconsidered because she has made a substantial and significant improvement in eradicating her drug problems and because she is presently free from drug abuse.
Although there is no case law specifically addressing section 78-3a-46 on the issue of what constitutes new evidence, there is an abundance of case law addressing this issue as it relates to newly discovered evidence for purposes of retrial under Rule 59(a)(4), Utah Rules of Civil Procedure. In addition to the definitional similarities between the statute and the rule,[1] the policy reasons behind them are also similar. A party is entitled to have all of the relevant evidence in his favor heard at a trial or hearing. However, the interest of finality requires that a party use diligence to discover and present all relevant evidence actually in existence at the time of trial. Because the language and the policies behind the statute and the rule are substantially similar, case law interpreting "newly discovered evidence" for purposes of Rule 59(a)(4) is helpful in interpreting "new evidence" for purposes of section 78-3a-46.
Evidence must meet several requirements to qualify as newly discovered evidence under Rule 59(a)(4). In Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832, 841 (Utah 1984), we stated that the moving party must show that the evidence has three characteristics in order for a new *58 trial to be granted. First, it must be material, competent evidence which is in fact newly discovered. Second, it must be such that it could not, by due diligence, have been discovered and produced at trial. Finally, it must not be merely cumulative or incidental, but must be of sufficient substance that there is reasonable likelihood that with it there would have been a different result.
In the instant case, appellant failed to meet her burden of establishing the existence of new evidence. The juvenile court, in its order denying her motion for supplemental hearing, stated:
In the present matter counsel for the mother proposes to submit evidence which was not in existence at the time of trial, and in fact is not even in present existence, but may be obtained in the near future. Specifically, counsel for the mother proposes to have his client evaluated ... to determine whether she is presently addicted... . Counsel does not know, at this point, whether the proposed new evidence will even materialize.
(Emphasis added.) The evidence appellant proposed to proffer was merely speculative at the time the motion was made. Because the "new evidence" that appellant relied upon for a rehearing did not exist, the juvenile court properly denied her petition for a rehearing.
III.
Lastly, appellant contends that she has a constitutional right to a rehearing equal to that afforded other civil litigants under Rule 59(a)(4) of the Utah Rules of Civil Procedure. She bases this contention on the due process and equal protection clauses, but does not identify whether she is relying upon the federal or our state constitution. Nevertheless, we have just pointed out that section 78-3a-46 affords her the same right and opportunity a civil litigant enjoys under Rule 59(a)(4). In both instances, rehearings may be granted when new evidence has been discovered. Since we have construed appellant's right to a rehearing under section 78-3a-46 as broadly as the right of other civil litigants to a rehearing under Rule 59(a)(4), no constitutional question exists.
The order of the juvenile court is affirmed.
WE CONCUR:
HALL, C.J., STEWART, Associate Chief Justice, and DURHAM and ZIMMERMAN, JJ., concur.
NOTES
[1] U.C.A., 1953, § 78-3a-46 (as amended) states that a new hearing is authorized when "new evidence which was not known and could not with due diligence have been made available at the original hearing and which might affect the decree, has been discovered."
Rule 59(a)(4) states that a new trial is authorized when there is "newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1586802/ | 12 S.W.3d 827 (2000)
GENERAL MILLS RESTAURANTS, INC. n/k/a GMRI, Inc., Appellant,
v.
TEXAS WINGS, INC. d/b/a Hooters, TWI XII, Inc., and Plano Wing's, Ltd., Appellees.
No. 05-99-00354-CV.
Court of Appeals of Texas, Dallas.
February 4, 2000.
*830 Mark R. Steiner, Cohan Simpson Cowlishaw & Wulff, L.L.P., Dallas, for Appellant.
Marston Alexander, Smith, Underwood & Perkins, Dallas, for Appellee.
Before Justices KINKEADE, OVARD, and WHITTINGTON.
OPINION
Opinion By Justice WHITTINGTON.
General Mills Restaurants, Inc. n/k/a GMRI, Inc. ("GMRI") appeals a summary judgment in favor of Texas Wings, Inc. d/b/a Hooters, TWI XII, Inc., and Plano Wing's, Ltd. ("Hooters"). On appeal, GMRI contends the trial judge erred in granting Hooters's motion for summary judgment because (i) the summary judgment evidence establishes genuine issues of material fact with respect to GMRI's trespass and nuisance claims; (ii) Hooters failed to establish as a matter of law that it was entitled to prevail on an affirmative defense; and (iii) the trial judge granted summary judgment on claims not addressed in the motion for summary judgment. We agree that Hooters did not establish it was entitled to summary judgment. Accordingly, we reverse the trial court's summary judgment and remand this cause for further proceedings.
BACKGROUND
GMRI owns and operates The Olive Garden restaurant at the intersection of U.S. 75 and Plano Parkway in Plano. It leases the land, including the surrounding parking lot, from James Stalker. Stalker also owns the land adjacent and to the north of The Olive Garden land, which he leased for the construction of a Rootys restaurant. Rootys subsequently closed and, in 1995, renovations began to convert the building into a Hooters restaurant. One of the changes made to the building was to move the entrance from the north side to the southwest side of the building, nearer The Olive Garden's entrance.
During the renovation period, The Olive Garden's manager, Renee Palmer, spoke with Hooters's representatives, expressing her concern that Hooters's customers might use The Olive Garden's parking on the north side of The Olive Garden building. When Hooters's representatives stated they believed the parking between the two buildings was common parking, Palmer told them the parking belonged to The Olive Garden.
Hooters opened for business in late 1995 and, since that time, Hooters's customers have continually parked in the parking spaces to the north of The Olive Garden restaurant. Although Palmer complained to Stalker and attempted to meet with the manager of Hooters, the parking situation did not change. In October 1996, Palmer informed Stalker that if he did not correct the situation, she would take steps to correct it and would look to Stalker for payment of the cost of the remedy. Palmer then hired a valet service to assist with parking. She later posted two signs in the north parking area indicating the parking spaces were for The Olive Garden's patrons. The original signs were removed *831 without Palmer's consent and later replacement signs were destroyed. After the valet service was terminated, Palmer hired a security service to walk the parking lot and inform people that the spaces at issue were for The Olive Garden's customers. GMRI gave Stalker the invoices for the security charges. When Stalker did not pay, GMRI deducted the payments from its rent.
On March 5, 1997, Stalker sued GMRI for breach of contract, alleging that GMRI owed unpaid rents under the lease. In response, GMRI filed a general denial, a counterclaim for breach of contract (breach of covenant of quiet enjoyment), and a third-party petition against Hooters for trespass. On May 11, 1998, GMRI filed its third amended answer, counterclaim, and third-party petition. In this pleading, GMRI alleged additional causes of action against Hooters, including nuisance, negligence, trespass, and violations of sections 36.11 and 36.25 of the Texas Business and Commerce Code. In addition, GMRI sought a declaratory judgment that Hooters was a nuisance by virtue of the continuing trespass of its employees and patrons and an injunction to prevent Hooters's employees and patrons from trespassing on GMRI's parking lot.[1]
On August 31, 1998, Hooters filed a motion for summary judgment against GMRI alleging the following grounds:
(i) Hooters is "entitled to judgment as a matter of law because the uncontradicted summary evidence establishes as a matter of law there is no genuine issue of material fact as to at least one element of the causes of action asserted" by GMRI against Hooters because
(a) "there is no evidence that [GMRI] was damaged as the result of any act or omission (intentional, negligent or otherwise) of any agent, employee, officer, director or representative of [Hooters];"
(b) GMRI "should be precluded from offering any alleged evidence that [GMRI] was damaged as the result of any act or omission (intentional, negligent or otherwise) of any agent, employee, officer, director or representative of [Hooters];" and
(c) "any alleged use of parking spaces by patrons of [Hooters] did not in any way obstruct access of [GMRI's] patrons to [GMRI's] restaurant and, as such, were [sic] so brief as to be merely incidental and for which [Hooters] should not be in any way held liable."
(ii) "there is no genuine issue of material fact that [Hooters's] efforts to prevent its patrons from allegedly using [T]he Olive Garden parking spaces were at all times reasonable under the facts and circumstances."
(iii) there is "no evidence that any agent, employee, officer, director, or representative of [Hooters] committed any act of trespass in that at all times [T]he Olive Garden was a public place, open to business to the general public or that [Hooters] in any way encouraged such acts."
(iv) GMRI "consented to the use of its parking spaces by all members of the public."
In support of its motion, Hooters attached excerpts from Palmer's deposition testimony. GMRI filed a response to the motion, attaching additional portions of Palmer's deposition testimony along with excerpts *832 from the depositions of Stalker and Dennis O'Hayre, Hooters's general manager. On February 15, 1999, after considering the motion and response, the trial judge granted summary judgment in favor of Hooters. Four days later, the trial judge signed an order, dismissing GMRI's and Stalker's claims against each other. This appeal followed.
STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Rule 166a(c)
The standards for reviewing summary judgment under rule 166a(c) are well established. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex.App.-Dallas 1998, no pet.). To prevail on summary judgment, a defendant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. International Union United Auto. Aerospace & Agric. Implement Workers of Am. Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex.App.-Dallas 1991, writ denied). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App.-Dallas 1994, writ denied). Where, as here, the summary judgment does not state the grounds upon which it was granted, the nonmovant must show on appeal that each independent ground alleged is insufficient to support the summary judgment granted. See Thomson v. Norton, 604 S.W.2d 473, 476 (Tex.Civ.App.-Dallas 1980, no writ); Orozco, 975 S.W.2d at 394. If a movant does not show its entitlement to judgment as a matter of law, we must remand the case to the trial court for further proceedings. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Texas Stadium Corp. v. Savings of Am., 933 S.W.2d 616, 618 (Tex.App.-Dallas 1996, writ denied).
Rule 166a(i)
Rule 166a(i) provides:
After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.
TEX.R. CIV. P. 166a(i). When a motion is presented under rule 166a(i) asserting there is no evidence of one or more essential elements of the nonmovant's claims upon which the nonmovant would have the burden of proof at trial, the movant does not bear the burden of establishing each element of its own claim or defense. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432-33 (Tex.App.-Houston [14 th Dist.] 1999, no pet.). Rather, the burden shifts to the nonmovant to present enough evidence to be entitled to a trial, i.e., evidence that raises a genuine fact issue on the challenged elements. See TEX.R. CIV. P. 166a cmt. If the nonmovant is unable to provide enough evidence, the trial judge must grant the motion. See Lampasas, 988 S.W.2d at 433.
Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency *833 standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. See Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.-Amarillo 1999, pet. denied); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.App.-Austin 1998, no pet.). Thus, our task as an appellate court is to determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Roth, 994 S.W.2d at 195; Jackson, 979 S.W.2d at 70. We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Jackson, 979 S.W.2d at 70-71. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow, 953 S.W.2d at 711.
NO-EVIDENCE SUMMARY JUDGMENT
In subissues one and five, GMRI contends the trial judge erred in granting Hooters summary judgment on the grounds that there is no evidence (i) "that any agent, employee, officer, director, or representative of [Hooters] committed any act of trespass in that at all times [T]he Olive Garden was a public place, open to business to the general public or that [Hooters] in any way encouraged such acts"and (ii) "GMRI was damaged as the result of any act or omission (intentional, negligent or otherwise) of any agent, employee, officer, director or representative of [Hooters]." Under both subissues, GMRI contends the trial judge erred because GMRI provided some evidence of trespass by Hooters's employees and was not required to establish lost profits or sales as an element of trespass. We agree.
Trespass to real property occurs when a person enters another's land without consent. See Cain v. Rust Indus. Cleaning Servs. Inc., 969 S.W.2d 464, 470 (Tex.App.-Texarkana 1998, pet. denied); Watson v. Brazos Elec. Power Coop., Inc., 918 S.W.2d 639, 645 (Tex.App.-Waco 1996, writ denied). Every unauthorized entry is a trespass "even if no damage is done." See Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827 (Tex.1997) (citing McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex.Civ.App.-Beaumont 1934, writ ref'd)); Watson, 918 S.W.2d at 645; see also Champion v. Vincent, 20 Tex. 811, 815 (1858) ("The law supposes that every trespass, committed upon property, is necessarily attended with some damage, however inconsiderable the injury; and hence the right to a recovery of damages for a trespass cannot be denied."). Even if a plaintiff fails to plead or prove that the defendant did any injury by entering plaintiff's property, the plaintiff is still entitled to nominal damages. See Meyers v. Ford Motor Credit Co., 619 S.W.2d 572, 573 (Tex.Civ.App.-Houston [14 th Dist.] 1981, no writ) ("The law is well settled that a trespasser is liable to the property owner even though there is no proof of actual damages in any specific amount."); Henry v. Williams, 132 S.W.2d 633, 634 (Tex.Civ. App.-Beaumont 1939, no writ) (by alleging and proving trespass, appellants "were entitled, at least, to nominal damages"); see also Smith v. Huizar, 25 Tex. 205, 206 (Supp.1860) (if plaintiff fails to lay foundation for or prove damages, he is entitled to nominal damages for trespass).
In its motion for summary judgment, Hooters first alleged there was no evidence that "any agent, employee, officer, director, or representative of [Hooters] committed any act of trespass." GMRI filed a response to the motion and attached Palmer's affidavit and portions of her deposition testimony. In her deposition, Palmer testified that on several occasions, *834 she had personally observed people she knew to be "either a patron or an employee of Hooters" park in the parking spaces at issue. In her affidavit, Palmer testified, "Once Hooters began operation, patrons and employees of Hooters have continually parked in the parking spots on the north side of [The Olive Garden].... The parking taken by patrons and employees of Hooters is some of the most desirable parking for patrons of The Olive Garden." Hooters does not dispute that the parking spaces north of The Olive Garden are leased exclusively to GMRI for The Olive Garden parking. We have reviewed this evidence and, after doing so, conclude it presents "more than a scintilla of probative evidence" showing that Hooters's employees trespassed.
Next, Hooters alleged there was no evidence GMRI was damaged. In support of this argument, Hooters attached Palmer's deposition testimony in which she and GMRI's attorney, Mark Steiner, stated that GMRI was not "seeking to recover economic loss or loss of sale." Hooters argued that because GMRI did not seek lost sales or profits, it necessarily follows there are no damages for any alleged trespass by Hooters. We disagree. Hooters's argument ignores the fact that a party suing for trespass is not required to show economic damages. See Meyers, 619 S.W.2d at 573. Further, even assuming GMRI was required to make such a showing to prevent a no-evidence summary judgment, it met its burden by attaching relevant portions of Palmer's affidavit in which she testified GMRI spent $200 for the original parking signs, $2500 for replacement signs and, as of August 31, 1998, in excess of $40,000 for security services. This testimony is sufficient to meet the "more than a scintilla of probative evidence" standard to prevent a no-evidence summary judgment.
We note additionally that, although it is unclear from Hooters's motion whether it also sought summary judgment on the ground that there was no evidence of damages on GMRI's nuisance claim, we would similarly conclude GMRI was not limited to economic loss as damages for nuisance. See Meat Producers, Inc. v. McFarland, 476 S.W.2d 406, 412 (Tex.Civ.App.-Dallas 1972, writ ref'd n.r.e.) (appropriate measure of damages is that "which is calculated to ascertain in the most certain and satisfactory manner the compensation to which the aggrieved landowner is entitled"); Sanders v. Miller, 52 Tex. Civ. App. 372, 379, 113 S.W. 996, 1000 (1908, no writ) (whether party injured is entitled to damages for nuisance depends on whether nuisance was "susceptible" of abatement). Because GMRI raised fact issues on whether Hooters's employees trespassed and, to the extent it was required, GMRI suffered damages, we conclude the trial judge erred to the extent he granted Hooters a no-evidence summary judgment. See Jackson, 979 S.W.2d at 70-71.
TRADITIONAL SUMMARY JUDGMENT
In subissues three, four, and six, GMRI contends the trial judge erred in granting Hooters summary judgment on the grounds that (i) any alleged use of parking spaces by Hooters's employees or patrons did not obstruct access of GMRI's patrons to The Olive Garden restaurant and, therefore, was so brief as to be merely incidental and for which Hooters should not be liable, (ii) there is no genuine issue of material fact that Hooters's efforts to prevent its patrons from allegedly using The Olive Garden parking spaces were at all times reasonable under the facts and circumstances, and (iii) GMRI consented to the use of its parking spaces by all members of the public. We address each ground in turn.
Nuisance
Nuisance is a "condition which substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it." Watson, 918 S.W.2d at 644. A *835 nuisance may occur as: (i) physical harm to property, such as encroachment of a damaging substance or by the property's destruction; (ii) physical harm to a person on his or her property, such as by an assault to his or her senses or by other personal injury; and (iii) emotional harm to a person from the deprivation of the enjoyment of his or her property, such as by fear, apprehension, offense, or loss of peace of mind. See Cain, 969 S.W.2d at 470; Maranatha Temple, Inc. v. Enterprise Prods. Co., 893 S.W.2d 92, 99 (Tex. App.-Houston [1st Dist.] 1994, writ denied).
In its motion for summary judgment, Hooters claimed it was entitled to summary judgment because any alleged act or omission by Hooters did not "obstruct access" to GMRI's property. Even assuming Hooters conclusively established it did not obstruct the access of GMRI's patrons, Hooters nevertheless would not be entitled to summary judgment as a matter of law. Nuisance, as noted previously, occurs as a result of a substantial interference "with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it"; it is not limited to obstructing access. Thus, Hooters's argument based on the lack of any "obstructed access" does not negate at least one element of GMRI's nuisance claim, and Hooters is therefore not entitled to summary judgment on this issue.
Consent
Actual or apparent consent is an affirmative defense to a cause of action for trespass. See Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613, 623 (Tex. App.-Corpus Christi 1994, no writ). Apparent consent must be given by someone acting with the authority of the landowner or one with rightful possession. See Armintor v. Community Hosp., 659 S.W.2d 86, 90 (Tex.App.-Houston [14 th Dist.] 1983, no writ); see also Carr, 893 S.W.2d at 623 (summary judgment on issue of trespass was inappropriate unless defendants proved they received apparent consent of someone acting with authority of landowner). Consent to enter property may be manifested by the owner's conduct or by the condition of the land itself. See Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 671 (Tex.1999) (O'Neill, J., dissenting). Although situations exist "where a trespass has been tolerated for such a sufficient period of time that the public believes it has the `permission' of the possessor to use the property," Murphy v. Lower Neches Valley Auth., 529 S.W.2d 816, 820 (Tex.Civ.App.-Beaumont 1975), rev'd on other grounds, 536 S.W.2d 561 (Tex.1976), not every tolerance of an intrusion will imply an owner's consent to enter the land. See Gonzalez v. Broussard, 274 S.W.2d 737, 738 (Tex.Civ.App.-San Antonio 1954, writ ref'd n.r.e.). Consent to enter will only be implied if the owner (i) has actual knowledge that people have been entering the land and (ii) fails to take reasonable steps to prevent or discourage those persons from entering the land. See Murphy, 529 S.W.2d at 820; City of El Paso v. Zarate, 917 S.W.2d 326, 329 (Tex.App.-El Paso 1996, no writ). Further, an owner need not take steps to evict known trespassers when doing so would be unduly burdensome or futile. See Mellon Mortgage Co., 5 S.W.3d at 672 (O'Neill, J., dissenting).
In its motion for summary judgment, Hooters claimed GMRI consented to the use of its parking spaces because GMRI did not tow cars or require people to move their cars. GMRI disagrees and relies on Palmer's affidavit in which she states she (i) told Hooters's representatives before the restaurant opened that the north parking spaces were solely for The Olive Garden patrons, (ii) attempted to convince Hooters to keep their employees and patrons out of the parking spots, (iii) complained to Stalker who, in turn, wrote Hooters and asked them to rectify the situation, (iv) continually complained to Hooters management and attempted to *836 find ways to cure the problem, (v) placed signs informing the public that the spaces were solely for The Olive Garden customers, and (vi) hired a valet service and later a security service to inform people that the parking spots were for The Olive Garden customers. Based on this evidence, we conclude a fact question exists on whether GMRI consented to the use of the parking lot by Hooters's patrons and employees. Because a fact question exists, summary judgment on this ground was improper.
Reasonableness of Hooters's Actions
Finally, Hooters moved for summary judgment on the ground that "there is no genuine issue of material fact that Hooters's efforts to prevent its patrons from allegedly using The Olive Garden parking spaces were at all times reasonable under the facts and circumstances." Hooters's argument under this point is not a model of clarity. Nevertheless, we interpret Hooters's argument to address GMRI's negligence claim. Having reviewed the summary judgment evidence, we conclude summary judgment on this point was improper because a fact issue exists. In its response to Hooters's motion, GMRI attached excerpts from O'Hayre's deposition. In that deposition, O'Hayre testified that after he discovered the parking spaces at issue were not shared spaces and, in fact, were solely for The Olive Garden parking, he took no steps as Hooters's manager to alleviate or address the problem. This testimony controverts Hooters's claim and raises a fact issue on whether Hooters's efforts were "reasonable under the facts and circumstances." To the extent summary judgment was granted on this ground, we conclude the trial judge erred.
VIOLATIONS OF THE TEXAS BUSINESS AND COMMERCE CODE
In its final subissue, GMRI contends the trial judge erred in granting summary judgment on all of GMRI's claims. Under this section, GMRI argues Hooters did not move for summary judgment on GMRI's claims that Hooters violated sections 36.11 and 36.25 of the Texas Business and Commerce Code. Because the judge granted Hooters relief on causes of action not raised in its summary judgment motion, GMRI claims we must reverse and remand that portion of the summary judgment for further proceedings. We agree.
When, as here, a trial judge grants more relief than requested in a motion for summary judgment, we must reverse and remand those issues after addressing the merits of the properly presented claims. See Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex. 1997); Postive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Because Hooters did not move for summary judgment on the alleged violations of sections 36.11 and 36.25 of the Texas Business and Commerce Code, the trial judge erred in disposing of those issues. We sustain GMRI's seventh subissue.
Because Hooters failed to establish it was entitled to summary judgment under both rule 166a(c) and 166a(i) as a matter of law, we reverse the trial court's summary judgment and remand this cause for further proceedings.
NOTES
[1] Specifically, GMRI claimed Hooters (i) was a nuisance because the illegal parking interfered with GMRI's use of its premises; (ii) had a duty, as an adjacent possessor of land, to see that its employees and patrons did not trespass and breached that duty by failing to institute a mechanism to control its employees and patrons; (iii) despite being on notice of the continual trespasses of its customers and employees, had advised, encouraged, or ratified its customers' and employees' tortious conduct by failing to take steps to prevent same and therefore was liable as a joint trespasser; and (iv) had violated the Texas Business and Commerce Code by failing to file assumed name documents with either the Texas Secretary of State or the office of the Dallas or Collin county clerks. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1672109/ | 274 So. 2d 685 (1973)
John ISONHOOD
v.
STATE of Mississippi.
No. 47107.
Supreme Court of Mississippi.
March 12, 1973.
Powell & Fancher, Canton, for appellant.
A.F. Summer, Atty. Gen., by T.E. Childs, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
*686 PATTERSON, Justice:
On February 9, 1968, John Rorer was robbed and fatally beaten at his place of business in Canton, Mississippi. John Isonhood was convicted of being an accessory before the fact to the robbery by the Circuit Court of Madison County and sentenced to serve thirty years in the state penitentiary. He appeals from this verdict and sentence.
In 1971 a grand jury of the county indicted Austin Whitaker, Jr., Tommy Lynn Smith and John Isonhood for the armed robbery of John Rorer. They were also charged by separate indictment with the crime of murder. The defendants obtained a severance and were separately tried in the following sequence.
Whitaker was first tried and convicted of murder, receiving a life sentence. Smith was then prosecuted for murder and this trial resulted in a mistrial. During the next term of court Smith was again tried for murder and was acquitted. Isonhood was then tried and convicted for armed robbery, receiving a thirty-year sentence. This sequence has some significance upon this appeal as the facts will indicate.
Whitaker testified during his trial that he had nothing to do with the robbery and murder. He swore that he had never been to Rorer's place of business, the Cash Oil Company, and that he had not collaborated or participated with either John Isonhood or Tommy Lynn Smith in the robbery or murder of Rorer. He also testified that he had never seen or been seen by Truitt Richardson at the Cash Oil Company on February 9, 1968. Whitaker denied making a confession which was introduced into evidence by John Myers, a Mississippi Highway Patrol officer. According to his testimony, he had been drinking beer, smoking marijuana, taking amphetamines and LSD on the day of the robbery and did not know where he was. The record indicates also that he had been convicted of possession of marijuana and was taken into custody on the present charges while confined to the Hinds County Penal Farm. He was positive, however, in response to the last question asked him by his counsel that he was relating the truth for the jury's consideration on his trial.
Subsequent to his conviction Whitaker filed a motion for a new trial preparatory to an appeal to this Court, which is pending in the lower court. He has remained in custody in the Madison County Jail from his murder conviction until this time.
Smith was tried on the murder indictment during the September 1971 term of the court which resulted in a mistrial when the jury was unable to agree upon a verdict. The record does not indicate that Whitaker testified for either the State or the defendant at this trial. The cause was continued, as was the case against Isonhood, until the next term of the court.
At the ensuing March 1972 term Smith was again tried for murder and was found not guilty by the jury. Whitaker testified for the State during this trial. On this occasion he swore that he, Smith and Isonhood had planned the robbery. He testified that he and Smith went to the Cash Oil Company and robbed and beat Rorer and that he had been seen there by Truitt Richardson. For these utterances, contrary to those given at his trial, the trial judge directed that the witness be bound over to await the action of the grand jury as a palpable perjurer.
Following Smith's acquittal this appellant was tried on the armed robbery indictment. Prior to trial, however, he filed a motion to suppress the anticipated testimony of Whitaker on the ground that he was a perjurer, having committed perjury within the presence of and to the judicial knowledge of the presiding judge, or in the alternative that the case be continued until the guilt or innocence of Whitaker as a perjurer could be determined. These motions were overruled.
During the course of the trial the evidence developed that appellant was a barber *687 and that his shop was only a few feet removed from Rorer's store building in which he was beaten and robbed. It indicated also that the home of the appellant's father and mother with whom he resided was directly across the street from the scene of the robbery. In fact, the defendant admits that he was familiar with the area and that he frequently visited Rorer in his store. He stated that he was aware that Rorer kept considerable sums of money on hand, but this knowledge was not unique since it was shared by others who traded with Rorer during his lifetime.
He further testified that on December 20, 1967, he injured his ankle when a shotgun accidentally discharged on a hunting trip and that he had been confined in hospitals until his release on the very day of the robbery.
When Whitaker was offered by the State as a witness, he was questioned extensively out of the jury's presence by the trial judge and his attorney, retained for the appeal of his murder conviction, relating to any offer or inducement to him in return for his testimony, and to his constitutional privilege of remaining silent. The court being satisfied in these particulars indicated that the witness would be permitted to testify. Whereupon, appellant's counsel questioned Whitaker and after establishing that the witness was jointly indicted with Smith and Isonhood for armed robbery, brought out the following: That he had been convicted of murder stemming from the same episode and in that trial had testified under oath that he had never been to the Cash Oil Company, that he, Tommy Lynn Smith and John Isonhood had never conspired nor planned to rob or kill Rorer, that he did not know and had never seen Truitt Richardson, that Truitt Richardson did not see him and could not identify him as being at the Cash Oil Company at the time it was robbed, that he had never made a statement to Patrolman Myers admitting participation in the crime, and when asked in the former trial "Are you telling the truth," he answered affirmatively.
He was then asked if he had not in the subsequent trial of Smith testified that he was at the Cash Oil Company on the night of February 9, 1968, that he, John Isonhood and Tommy Smith had planned the robbery, and that he and Smith went to the Cash Oil Company store and robbed and beat Rorer. He would not deny that he was seen and identified by Truitt Richardson at the coke machine in front of the Cash Oil Company on the night it was robbed. Immediately after answering these questions in the affirmative, the following colloquy transpired:
"Q. And did you not again testify in that same trial, the second trial, that your testimony which you were giving at that time under oath was the truth?
"A. Yes sir.
"Q. You testified to that?
"A. Yes sir.
"Q. Therefore Mr. Whitaker, you are guilty of perjury, is that not correct?
"A. I was just telling the truth.
"Q. But now you didn't answer my question, aren't you guilty of perjury?"
* * * * * *
"A. I haven't been convicted of it.
"Q. I didn't ask you that, I asked you aren't you guilty of perjury?
"BY MR. McINTYRE: Your Honor, I want to object also, I don't think that's proper. I don't think that's proof of conviction, he's not testifying here as to whether he's guilty or not guilty and we plead the Fifth Amendment as far as this boy is concerned here. That's highly improper.
"BY THE COURT: In light of counsel's argument I'm going to sustain the objection.
"BY MR. FANCHER:
"Q. Mr. Whitaker you did lie under oath in this courtroom, did you not?
"A. Yes sir."
*688 * * * * * *
"BY THE COURT: I am going to sustain the objection. The record speaks for itself in that he was ordered held by the Sheriff for action of the Grand Jury on a perjury charge.
"BY MR. FANCHER: I would like to move, following the testimony of this witness, it is apparent that he has lied under oath in this courtroom in two previous trials, inconsistent testimony concerning material and relevant facts in this case and under the laws of the State of Mississippi, a man who has done so is not qualified, he is not competent to testify any further under oath in any court and we respectfully move that he be not received as a witness and that his testimony be suppressed."
The motion being overruled, Whitaker testified before the jury that the robbery was planned by John Isonhood. His testimony was:
"Q... . tell the jury in your own words how this plan came into being.
"A. Well I was introduced by Tommy Lynn Smith to it and later on was told that there was a third party involved and it turned out to be John Isonhood and about a week before then I went to the Madison County Hospital where he was, I believe he was in the northeast or northwest wing in a private room."
* * * * * *
"Q. All right.
"A. And when I walked into the room, Tommy Lynn Smith and I, we saw John Isonhood, he was letting the blood circulate in his foot, it had been hanging down by the floor and I asked him how he was doing and everything, he said all right and ah, he said you know why you're here don't you, I said yeah, I know why I'm here, and so he pulled a diagram out from under his pillow that he was laying on and it was a brief diagram of the Cash Oil Service Station and he started going through the details of what was supposed to transpire.
"Q. What was, what was those details?
"A. Well, he said there was an old man there and he did not have a gun and that there was a safe there and that he usually carried up in the thousands of dollars in his pocket and there's you know, usually several hundred dollars in the cash register. And so ah, so we sit there and talk and I asked him, I said well how do you know all this and he said he owned a barber shop, ran a barber shop right next door and he saw him every day and that he knew when he had the money and where he had it, and I said all right. And so he started going through the details about it. We were supposed to go in the front door of the Cash Oil Company and ah, he told us there was a bolted door on the right side as you go in and that's what we were supposed to leave by."
* * * * * *
"Q... . What else did he tell you?
"A. Well he said that we were supposed to, after we had committed the robbery we were supposed to, I was supposed to give Tommy Lynn Smith the money and he was supposed to come back and we were supposed to all come back and split it up.
"Q. Now had, did he say anything else as to the details of the proposed robbery?
"A. Well, he had told us pretty much where to park and everything you know, and how to get to it and ah, you know, just the general lay out of where it was."
* * * * * *
"Q. Did you, Smith and Isonhood discuss the time and place this robbery was to occur?
"A. Yes sir.
"Q. The date was the date chosen?
"A. Yes, sir, that Friday afternoon. He was supposed to have gambled, I believe, the night before and had a lot of money on him.
*689 "Q. All right, did y'all discuss the choice of weapons to use?
"A. Yes sir, we did and Tommy Lynn Smith volunteered an iron bar, iron pipe or something like that, I told him no, I didn't want anything like that because you know, it would hurt the more, would hurt the man more than we intended to do and ah, I was thinking about backing out of it by then you know, and he said, no, Isonhood told me no, we couldn't back out of it because, you know, he didn't have any money the insurance paid his bills but they didn't, you know, pay his salary and he didn't have any money."
On cross-examination he again testified that about a week transpired from the time the robbery was planned in Isonhood's hospital room until the robbery occurred.
Whitaker was the key witness for the State. Without his testimony concerning the planning of the robbery there is no evidence to support Isonhood's conviction.
The testimony of Whitaker is subject to further doubt since the attorney for the defendant was not permitted to cross-examine the witness relating to his use of drugs and alcohol on the day he stated the crime was planned, being restricted on cross-examination to the day of the crime. A bill of exceptions signed by the judge states in part:
Prior to the introduction by the State and the examination of the witness, Whitaker, at the request of the District Attorney and outside the hearing of the jury, the Judge instructed Counsel for Defendant that he would not be allowed to cross-examine said witness concerning his habitual use of drugs, narcotics, and alcohol; but that any examination in this regard would be limited to the activities and conduct of the witness on the day and date of the alleged crime.
The assignments of error urged for reversal are:
1. The court erred in allowing the witness Whitaker to testify.
2. The verdict of the jury was against the great weight of the evidence.
3. It was reversible error for the trial court to allow the district attorney to examine and inform the jury on voir dire with reference to punishment.
4. It was reversible error for the deputy sheriff to testify for the State when he was driving the jury to meals during the course of the trial.
5. It was reversible error for the court to refuse to permit the defendant to cross-examine the witnesses Whitaker and Smith.
We are of the opinion the court did not err in permitting Whitaker to become a witness. Mississippi Code 1942 Annotated section 2315 (1956) provides in part that:
Every person who shall wilfully ... testify ... falsely to any material matter under any oath ... in any court of law ... shall be guilty of perjury, and shall not thereafter be received as a witness to be sworn in any matter or cause whatever... .
And Mississippi Code 1942 Annotated section 2479 (1956) provides:
Whenever it shall appear to any court that a witness or party who has been sworn ... in any case... pending before the court, has testified in such manner as to induce a reasonable presumption that he has wilfully ... testified falsely to some material point ... the court may immediately commit such . .. witness ... to prison, to take bond ... for his appearing and answering to an indictment for perjury.
The trial judge in conformity with the latter statute bound the witness over to await an indictment as a palpable perjurer.
The incompetency of a perjurer to become a witness is based upon a verdict of *690 guilty. The presumption of innocence extends to an accused in all criminal cases until disproved on a fair and impartial trial. Montgomery v. State, 85 Miss. 330, 27 So. 835 (1905). This presumption, of course, includes perjury.
The appellant contends, however, that McInnis v. State, 202 Miss. 715, 32 So. 2d 444 (1947), supports his premise that Whitaker was guilty of perjury and was an incompetent witness. The basis of his contention is that the judge had personal and judicial knowledge of Whitaker's initial testimony since he presided in the former case and thus could have found the witness in contempt of court when it became apparent that he had sworn falsely on material facts in one case or the other. He therefore argues that since a contempt citation would have been in order, this is equivalent to a verdict of guilty, leaving Whitaker an incompetent witness. It is true that McInnis, supra, uses language indicating that false swearing may be adjudged a contempt of court. Nevertheless, the statutes afford an alternative method for punishment for perjury which is to bind the person believed to be guilty of such over to await the action of the grand jury. This statutory procedure was followed in this instance. We conclude that the presumption of innocence cloaks the accused until it is removed by a guilty verdict and at that time he becomes an incompetent witness and not before.
We do not reach the interesting question of what effect a subsequent verdict of guilty on the perjury charge would have upon the witness's prior testimony emanating from the same occurrence leading to appellant's conviction though we can visualize post-conviction proceedings. See Great Falls Mfg. Co. v. Mathes, 5 N.H. 574 (1830), and compare Hill v. State, 55 Tex.Cr. 435, 117 S.W. 134 (1909).
The alternative relief sought by way of continuance to afford a reasonable opportunity to prosecute Whitaker on the perjury charge is not well founded, in our opinion, since the matter of a continuance lies largely within the discretion of the trial court. Harrison v. State, 226 So. 2d 765 (Miss. 1969). We think there exists a strong probability that a grand jury may fail to indict Whitaker, and especially so if there is brought to their attention the life sentence Whitaker has received for murder, with little likelihood of additional punishment by way of a perjury indictment and conviction.
Another circumstance arises which the trial court doubtless considered in passing upon the motion for a continuance and that is the probable hesitancy, not illogical, of a prosecuting attorney to press for an indictment and early trial on a perjury charge that would have the effect of rendering incompetent the chief witness of the state in a major crime if he were successful in the perjury endeavor. We conclude under the existing circumstances that the trial court did not abuse its discretion in denying the motion for a continuance.
The next assignment of error is that the verdict of the jury was against the overwhelming weight of the evidence. Resolving this issue poses a serious question indeed. Whitaker's testimony, undoubtedly essential to the conviction of Isonhood, is gravely suspect since he has confessed to lying under oath on material facts relating to the crime and is now awaiting indictment for palpable perjury. Being aware of the vagaries of jurors and the uncertainty of indictment and conviction of Whitaker which would directly affect the outcome of the case upon retrial, we decline comment upon the weight of the evidence since there exist other grounds which dictate a reversal of the cause. This being the circumstance and in view of the future possibilities (a guilty verdict, leaving the witness incompetent, an acquittal, leaving Whitaker's credibility unstained by a pending perjury charge, or no indictment by a grand jury, leaving the witness competent, but subject to a greater area of cross-examination than permitted *691 in this trial), we conclude that comment upon the weight of the evidence would serve no good purpose.
The appellant also urges that it was error for the district attorney to inform the jury on their voir dire examination with regard to the punishment which could be imposed for the crime of robbery. We note that the appellant moved for a mistrial after eleven jurors had been accepted for jury service. The motion was overruled, it being the court's opinion that since no evidence had been heard in the trial nor had the jury been instructed as to the law, that under these circumstances this error by the district attorney was harmless. With this conclusion of the trial court we agree, but caution that this practice, if it be such, is of doubtful validity in view of that which is stated in Ware v. State, 218 Miss. 173, 65 So. 2d 236 (1953); Horn v. State, 216 Miss. 439, 62 So. 2d 560 (1953); and Abney v. State, 123 Miss. 546, 86 So. 341 (1920). We conclude this assignment to be without merit, but express the hope that it will not reoccur on retrial since the distinction between harmless and prejudicial error is often delicate and difficult of decision.
The appellant next asserts that the court erred in permitting the deputy sheriff to testify in rebuttal for the State when it was known that he had driven the jury to meals during the course of the trial. He concedes, however, that no objection was interposed to this testimony at the time and therefore the court had no opportunity to rule upon the competency of this evidence. In several recent cases we have denounced the use of material witnesses serving as jury bailiffs. This practice probably has not influenced a jury verdict except on very rare occasion. However, it has the appearance and the possibility of undue familiarity with the jury, leading to just criticism of the jury system and should be avoided. See Dunn v. State, 264 So. 2d 823 (Miss. 1972); Perkins v. State, 244 So. 2d 414 (Miss. 1971); and Lee v. State, 226 Miss. 276, 83 So. 2d 818 (1955). The error not being properly preserved for this appeal is without merit.
Appellant contends finally that the lower court erred in instructing counsel for the defendant, prior to the introduction of Whitaker as a witness, that he would not be permitted to cross-examine him concerning his habitual use of drugs, narcotics and alcohol other than on the day of the robbery. The only evidence linking the appellant to the crime is that he planned it approximately one week prior to its occurrence. The restriction placed upon the cross-examination precluded defense counsel from cross-examining the witness on his condition of sobriety and ability to recall the transactions on the day this appellant was alleged to have disclosed the robbery plan to him. The witness's testimony indicates that on the day of the robbery he had used alcohol and numerous drugs, including marijuana, amphetamines and LSD, and at that time could not remember where he was.
The record reflects that at the time Whitaker was arrested on the present charge he was incarcerated in the Hinds County Penal Farm for violation of the narcotics act. From these facts it appears to us that cross-examination relating to the witness's use of drugs or alcohol on the day he allegedly conferred with the appellant in the hospital with regard to the planning of the robbery was very material and that a mandate from the court that no cross-examination would be permitted upon this issue constitutes reversible error. In Walley v. State, 240 Miss. 136, 138, 126 So. 2d 534, 535 (1961), we stated:
The State's evidence in support of the conviction is weak, and contains several unreasonable and inconsistent situations. However it is not necessary for us to analyze the evidence at length and decide whether it is sufficient to support the conviction. We think the case must be reversed for the exclusion of certain evidence proffered by defendant's counsel *692 in his cross-examination of Ellis, the State's chief witness. The defense has a right on cross-examination to interrogate the State's witnesses concerning their mental capacity, perception, memory and trustworthiness. These were especially important issues as to Ellis. On cross-examination of him, counsel asked Ellis whether he was confined in a mental hospital in San Antonio, Texas two years ago. The district attorney's objection to this question was sustained. It should have been overruled. Whether Ellis has a history of previous mental disorders was a relevant fact for the jury to consider in determining his veracity.
And in Bass v. State, 254 Miss. 723, 735, 182 So. 2d 591, 595-596 (1966), we stated:
... On the subject of cross-examination, this Court said in Prewitt v. State, 156 Miss. 731, 735, 126 So. 824, 825 (1930):
"It is of the utmost importance in the administration of justice that the right of cross-examination be preserved unimpaired. It is the law's most useful weapon against fabrication and falsehood. As a test of the accuracy, truthfulness, and credibility of testimony, there is no other means as effective. In this state, cross-examination is allowed coextensive with the issues, Walton v. State, 87 Miss. 296, 303, 39 So. 689; not only, but it may proceed into the collateral circumstances surrounding, or in any way affecting, the transaction to the full extent that they have relevant connection by way of testing the memory, accuracy, sincerity, interest, or bias of the witness. In all these matters the privilege of counsel rightfully has broad latitude, and, to make it fully effective towards the purposes for which the law allows and favors it, the privilege should not be interfered with or hampered or restricted by the trial judge, except in clear case of irrelevancy, trespass beyond admissible ground, or extremes of continual, aimless repetition....
Liberal cross-examination on material matters, and we do not mean by this to say unlimited cross-examination, is the heart of our adversary system which is to seek the truth. It is the most useful weapon in our jurisprudence against fabrication and falsehood and should remain unimpaired.
The case is reversed and remanded for a new trial due to the unwarranted restriction of cross-examination upon material issues.
Reversed and remanded.
RODGERS, P.J., and INZER, ROBERTSON and SUGG, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1773440/ | 3 S.W.3d 260 (1999)
THE STATE BAR OF TEXAS, Appellant,
v.
Bernard J. DOLENZ, Appellee.
No. 05-97-00676-CV.
Court of Appeals of Texas, Dallas.
October 18, 1999.
*262 Linda A. Acevedo, Austin, James D. Blume, Blume & Stoddard, Dallas, for appellant.
Jack Thomas Jamison, Dallas, for appellee.
Before Justices KINKEADE, MOSELEY, and O'NEILL.
OPINION
Opinion By Justice MOSELEY.
A jury found that attorney Bernard J. Dolenz violated several provisions of the Texas Code of Professional Responsibility and/or Texas Disciplinary Rules of Professional Conduct by: (1) improperly soliciting Dmitri Vail's legal business; (2) entering into a prohibited business transaction with Vail; and (3) representing another person in a matter adverse to Vail. However, the trial court rendered judgment notwithstanding the verdict in favor of Dolenz. The State Bar contends the trial court erred in rendering judgment notwithstanding the verdict on issues two and three.[1] Dolenz responds there is no evidence to support the jury's findings. In the alternative, he contends in seven cross-points that the evidence is factually insufficient to support the findings.
We conclude the evidence is legally and factually sufficient to support the jury's findings regarding Dolenz's prohibited business transaction with Vail and Dolenz's representation of another in a matter adverse to Vail. Therefore, we reverse the trial court's judgment, reinstate the jury's verdict as to questions two and three and the State Bar's attorney's fees, and remand the cause to the trial court for a determination of the appropriate sanction or sanctions to be imposed. We publish this opinion pursuant to Texas Rule of Disciplinary Procedure 6.06. See Tex.R. Disciplinary P. 6.06, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A-1 (Vernon 1998).
BACKGROUND
Vail, a well-known portrait artist, was deceased at the time of this trial. Dolenz was not present at trial, but he was represented by counsel. Thus, the State Bar presented its case largely through Dolenz's deposition testimony.
Dolenz testified he first met Vail in July 1989 when Dolenz went to Vail's house to look at his artwork. According to Dolenz, Vail was in his seventies at the time.[2] Vail *263 learned Dolenz was a lawyer and asked if Dolenz would do some legal work for him. Vail explained he was the beneficiary of a trust set up by an ex-wife and that he felt the trust was being mismanaged. Dolenz looked into the matter for Vail and concluded one of the trustees, NCNB bank, had breached its fiduciary duty. In August 1989, Vail hired Dolenz to represent him in an action against NCNB. They entered into a written contingency fee agreement, and Vail also agreed to pay the expenses Dolenz incurred in representing him. Vail further gave Dolenz a written power of attorney "to act in [his] behalf." On Vail's behalf, Dolenz filed a lawsuit against NCNB. The suit was removed to federal court.
Vail also hired Dolenz to help recover some of Vail's paintings. Dolenz explained that some of Vail's paintings had "disappeared" and Vail was having trouble recovering them. For example, one person had taken some of Vail's paintings to sell for him and had not returned the unsold works. On August 29, 1989, Dolenz and Vail entered into a contract regarding recovery of the paintings. Vail agreed to pay Dolenz $200 an hour for the time Dolenz spent on recovery of the paintings and $5000 for each painting recovered. Dolenz testified he recovered fifteen to seventeen of Vail's paintings.
Also on August 29, 1989, Dolenz set up a trust for Vail. The corpus of the trust consisted of all Vail's paintings and artwork located at Vail's residence and several other specific locations, as well as those works at "area restaurants in Dallas, TX, among other places"; all rights and copyrights to any of Vail's artwork; and all furnishings, clothes, and personal effects located at Vail's residence. The sole beneficiary of the trust was Dolenz. Dolenz's daughter Brenda Lievrouw notarized the trust instrument. Dolenz charged Vail $3000 to set up the trust.
In the fall of 1989, Vail executed four promissory notes payable to Dolenz. According to Dolenz, the first note, for $19,372.70, was payment for professional services Dolenz rendered to Vail, including recovery of two paintings and the payment of an outstanding judgment in favor of a third party against Vail. The second note was for $1000 that Dolenz had loaned Vail for living expenses. The third note was for $23,002.23, the amount of a bill Dolenz sent Vail for his services through October 16, 1989. The note was secured by "all paintings and copyrights created by Dmitri Vail and which are located presently at his home." The note further provided that the "paintings may remain at this residence, but may be removed at any time ONLY by Bernard Dolenz or his agent/s." The fourth note was for $52,500. Dolenz testified it was payment for recovery of ten paintings ($50,000) and for a $2500 loan. That note was secured by "all paintings, artwork of whatsoever kind, created by Dmitri Vail, wherever located along with all negatives, prints, copyrights" and "all easles [sic], frames, art equipment, personal jewelry, and personal effects belonging to Dmitri Vail." Dolenz later assigned all four notes to his daughter, Lievrouw.
In January 1990, Vail remarried. According to Dolenz, Vail's new marriage caused Dolenz's relationship with Vail to deteriorate. In the spring and summer of 1990, Dolenz sent Vail a series of letters written on Dolenz's professional letterhead. In a letter written in March, Dolenz informed Vail the promissory notes had been assigned to Lievrouw and stated, "I understand that she [Lievrouw] is making demands to have these notes paid."
On April 12, 1990, Lievrouw and Dolenz went to Vail's house with a moving van to pick up the paintings that were collateral for the notes. Vail's wife called the police. After the police arrived, Lievrouw and Dolenz left without the paintings. Dolenz could not remember why he had been present, but denied he had been acting as his daughter's attorney. That same day, Dolenz wrote to Vail: "You should understand that the collateral used for the notes *264 that have been assigned to Brenda Lievrouw is encumbered and that you cannot make any disposition of this collateral until you have satisfied the notes that Mrs. Lievrouw has."
Also on April 12, Dolenz filed a motion to withdraw as Vail's counsel in the suit against NCNB. On May 8, 1990, the federal court granted Dolenz's motion to withdraw.[3] However, the day after that motion was filed and before it was heard, Lievrouw sued Vail in a justice of the peace court. The court's docket sheet on that case reflects Lievrouw was represented by Dolenz, and Dolenz acknowledged at trial he filed that suit as his daughter's attorney. The justice of the peace court's docket sheet also reflects Vail filed a motion to disqualify Dolenz and a motion for sanctions.
Although Dolenz was no longer the owner of the notes, he continued to make written demands on the notes. In a June 14 letter to Vail, Dolenz mentioned Lievrouw's visit to Vail's house and said "she did not forcibly come to take her collateral.... You had agreed that the paintings could be taken at any time." The letter also said, "All that Brenda Lievrouw desires is that you pay what you promised. She does not want your paintings. She does want her money collateralized as you promised." In a July letter, Dolenz wrote: "You represented that you were coming into millions of dollars.... If any of this is really true, just sell one of your paintings and pay your note debt to Brenda Lievrouw as you promised you would do. She does not want your paintings as they really have no market value as you have already discovered through no sales over the past several years." Dolenz also wrote, "As for the notes, you signed them in the presence of witnesses, after the content was reviewed with you."
Vail eventually filed a grievance against Dolenz. Vail died in December 1991.
The State Bar filed this disciplinary action in 1992. The State Bar alleged Dolenz violated various rules of professional conduct by (1) improperly soliciting Vail's legal business; (2) entering into a prohibited business transaction with Vail to recover and market Vail's paintings and failing to promptly deliver the recovered paintings to Vail; and (3) representing Lievrouw in a matter adverse to Vail. On January 1, 1990, the Texas Disciplinary Rules of Professional Conduct replaced the Texas Code of Professional Responsibility. Because Dolenz's actions allegedly occurred in 1989 and 1990, in its disciplinary petition, the State Bar alleged Dolenz violated specific provisions of both the rules and the code.
The trial court instructed the jury on the relevant provisions of both the Texas Disciplinary Rules of Professional Conduct and the Texas Code of Professional Responsibility and submitted to them three questions regarding Dolenz's alleged ethical violations. The jury answered all three questions against Dolenz and also awarded the State Bar attorney's fees. However, the trial court rendered judgment notwithstanding the verdict in favor of Dolenz. This appeal followed.
The State Bar contends the trial court erred in rendering judgment notwithstanding the verdict because there is evidence to support the jury's findings regarding: (1) Dolenz's business transaction with Vail and his failure to promptly return Vail's paintings; and (2) Dolenz's representation of his daughter in a matter adverse to Vail. Dolenz maintains there is no evidence to support the jury's verdict. In the alternative, he asserts seven cross-points in which he contends we should remand for a new trial because the evidence is factually insufficient to support the jury's findings.
STANDARD OF REVIEW
To uphold the trial court's judgment notwithstanding the verdict, we must *265 determine that no evidence supports the jury's findings. Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex. 1998); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). We review only the evidence and inferences tending to support the jury's verdict and must disregard all evidence and inferences to the contrary. Mancorp, 802 S.W.2d at 227. If more than a scintilla of evidence supports the jury finding, it must be upheld. Id. at 228.
When considering a factual sufficiency challenge to a jury's verdict, we must consider and weigh all of the evidence, not just the evidence that supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, ___ U.S. ___, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407.
BUSINESS TRANSACTION REGARDING RECOVERY OF VAIL'S PAINTINGS
In its first point of error, the State Bar contends the trial court erred in rendering judgment notwithstanding the verdict because there is evidence to support the jury's finding that Dolenz violated the rules of professional conduct by entering into a prohibited business transaction with Vail and by failing to promptly return Vail's paintings. The jury was asked about these issues in Question No. 2:
Do you find from a preponderance of the evidence that the conduct of Bernard Dolenz with respect to his business relationship, if any, with Dmitri Vail to recover of [sic] the paintings of Mr. Vail was in violation of Texas Code of Professional Responsibility DR 5-104(A) and Texas Disciplinary Rule of Professional Conduct Rules 1.04(a), 1.08(a), 1.14(b), and 8.04(a)(3)?[4]
The jury answered, "We do."
The State Bar specifically contends there is evidence Dolenz violated DR 5-104(A). In connection with Question No. 2, the jury was instructed that DR 5-104(A), in effect until December 31, 1989, provided: "A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure." TEX. STATE BAR R., art. XII, § 8, DR 5-104(A) (Tex.Code of Prof'l Resp.), 34 TEX. B.J. 758 (1971, superseded 1990). In its disciplinary petition, the State Bar alleged that in August 1989, Dolenz entered into a business transaction with Vail to recover certain paintings and to market them by opening an art gallery.
Dolenz contends his agreement with Vail to recover paintings was merely an "attorney employment/fee agreement." Dolenz further contends the evidence is insufficient to prove: (1) he and Vail had differing interests; (2) Vail expected Dolenz to exercise his professional judgment for Vail's protection; and (3) Vail did not consent after full disclosure.
Business relationships between lawyers and clients are beset with conflicts of interest and will often involve situations in which the lawyer occupies a dangerously superior bargaining position. CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 8.11.1 (1986). Clients are vulnerable to lawyer overreaching because of their trust in their *266 lawyers and because of their lawyers' presumed superior professional knowledge and skill. Id. § 8.11.3. The strict scrutiny standard applies to all business dealings between lawyer and client. Id. Business deals with clients will be subjected to an even stricter scrutiny if the client is elderly. See id.
Here, the record reflects Dolenz and Vail entered into the contract regarding recovery of the paintings in August 1989. Dolenz also set up a trust for Vail, and Dolenz was the sole beneficiary of the trust. The corpus of the trust consisted of all of Vail's paintings and artwork located at Vail's residence and other locations, all rights and copyrights to any of Vail's artwork, and all furnishings, clothes, and personal effects at Vail's residence. The jury was shown a videotape Dolenz made of the various paintings Vail had at his house.
In the fall of 1989, Vail executed four promissory notes payable to Dolenz totaling almost $100,000. One of the notes was secured by "all paintings and copyrights created by Dmitri Vail and which are located presently at his home." Another note was secured by "all paintings, artwork of whatsoever kind, created by Dmitri Vail, wherever located."
Other evidence shows that, in addition to recovering Vail's artwork, Dolenz was actively involved in marketing it. On September 12, 1989, Dolenz wrote the following in a letter to Vail: "I am trying to locate your paintings and bring them back together again for the Trust that you established so that you can have a `really big showing' in the next few months." Dolenz's bill reflects he charged Vail for telephone calls that involved the promotion of Vail's work. On September 15, Dolenz visited with "CB and Al at the World Trade Center" regarding the potential display of Vail's paintings. In October, Dolenz had a telephone call from Vail "regarding meeting at the Venetian Room with some of his friends to promote some of his paintings" and another to discuss the "Fairmont meeting for art promotion." The bill also reflects that in October, a friend of Vail's, Lois Williams, contacted the Liberace Museum in Las Vegas regarding the sale of a Vail painting of Liberace.
We conclude there is more than a scintilla of evidence to support the jury's finding that Dolenz and Vail had differing interests in the business relationship regarding the paintings and that Vail expected Dolenz to exercise his professional judgment for Vail's protection.[5] Contrary to Dolenz's assertions, the record contains legally sufficient evidence that the business transaction regarding the paintings was more than merely an attorney/client relationship. Dolenz secured a personal interest in Vail's artwork and attempted to market it. From the evidence that Dolenz made himself the beneficiary of a trust consisting of Dolenz's artwork and that Vail's artwork was collateral for the notes, the jury could have reasonably inferred that Dolenz and Vail had differing interests in the transaction. The jury could also have inferred that, because Dolenz was Vail's attorney, Vail expected Dolenz to exercise his professional judgment for Vail's protection.
We now consider Dolenz's assertion that the evidence is legally insufficient to prove Vail did not consent to the business transaction after full disclosure. As noted above, at the relevant time, DR 5-104(A) provided: "A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure." TEX. STATE BAR R., art. XII, § 8, DR 5-104(A) *267 (Tex.Code of Prof'l Resp.), 34 TEX. B.J. 758 (1971, superseded 1990) (emphasis added). There is no evidence in the record to show Dolenz failed to give full disclosure or to show Vail did not consent. Indeed, the State Bar does not assert there is. It instead asserts Dolenz bore the burden of proof on this issue.
We have found no Texas case directly addressing who has the burden of proving, in a disciplinary proceeding, that a client's consent to a transaction governed by DR 5-104(A) was given with or without full disclosure. Generally, disciplinary actions must be proved by a preponderance of the evidence. See TEX.R. DISCIPLINARY P. 3.08(C). Thus, in a proceeding seeking disciplinary action for violation of DR 5-104(A), the State Bar had the burden of proving Dolenz entered into a business transaction with Vail in which they had differing interests, and that Vail expected Dolenz to exercise his professional judgment in that transaction for Vail's protection. However, whether Vail received full disclosure before he consented to the transaction at issue is a matter constituting an avoidance or affirmative defense to the State Bar's claim of professional misconduct. See TEX.R. CIV. P. 94.
One commentator has also said that when a client attacks the validity of a transaction with a lawyer, the lawyer has the burden of justifying the transaction:
While DR 5-104(A) says nothing about the fairness of the underlying transaction, courts and disciplinary agencies have been significantly influenced by the underlying common-law rules governing transactions between fiduciaries and their clients and wards. In general, the established common-law doctrine is that a client who attacks the validity of a transaction with a lawyer can prevail after showing only that the disadvantageous transaction was entered into with a lawyer-fiduciary. In order to uphold the transaction, the lawyer has the burden of showing that he or she took no advantage of the lawyer-client relationship.
WOLFRAM, at § 8.11.3. Further, in disciplinary proceedings based on a business transaction between an attorney and client, several other states have placed the burden on the attorney to justify the transaction. See, e.g., In re Imming, 131 Ill. 2d 239, 137 Ill. Dec. 62, 545 N.E.2d 715, 722 (1989); Iowa Supreme Court Bd. of Prof'l Ethics and Conduct v. Sikma, 533 N.W.2d 532, 535 (Iowa 1995); In re McMullen, 127 Wash.2d 150, 896 P.2d 1281, 1288 (1992); cf. X Corp. v. Doe, 805 F. Supp. 1298, 1308-10 (E.D.Va.1992) (in disciplinary action involving violation of rule requiring preservation of a client's confidences and secrets, attorney has burden to show he was permitted to reveal confidential information), aff'd, 17 F.3d 1435 (4 th Cir.1994). But see State ex rel. Neb. State Bar Ass'n v. Thor, 237 Neb. 734, 467 N.W.2d 666, 676 (1991) (the bar must show client consented to transaction without full disclosure).
Lastly, as a general rule, it makes more sense to require Dolenz to affirmatively prove the existence and extent of his disclosure to Vail, than to require the State Bar to negate such disclosure. See City of Houston v. Crabb, 905 S.W.2d 669, 674 (Tex.App.-Houston [14 th Dist.] 1995, no writ) (takings case).
Dolenz cites one case, In re Medrano, 956 F.2d 101 (5 th Cir.1992), for the proposition that the State Bar had the burden to prove Vail did not receive full disclosure before he consented to the transaction. Medrano involved a federal court judgment disbarring an attorney for communicating with a party represented by another attorney, in violation of Texas Disciplinary Rule of Professional Conduct 4.02.[6] The *268 question in dispute was whether the lawyer or someone else initiated the allegedly prohibited communication. Id. at 103. The Fifth Circuit reversed and remanded the case for further proceedings because the trial court based its findings of fact on a preponderance of the evidence standard, rather than the clear and convincing evidence standard applicable to disbarment proceedings in federal court. Id. at 102, 105. In doing so, Medrano discussed the procedures involved in a disciplinary proceeding in passing, and stated: "All elements of a violation of Rule 4.02, including proof that the lawyer initiated the prohibited communication, must be established by clear and convincing evidence." Id. at 103.
However, we do not find the language cited from Medrano persuasive. First, the dispositive issue in Medrano was the nature of the burden of proof required to obtain an order disbarring an attorney in federal court (e.g., clear and convincing evidence versus a preponderance of the evidence), not the allocation of that burden with respect to a matter that would render the communication nonviolative of the disciplinary rules. The issue of which party had the burden to prove who initiated the communication was apparently not an issue raised by the parties and was not an issue expressly considered by Medrano. Thus, the statement quoted is dictum. Second, the statement quoted from Medrano is made without any accompanying analysis; it is a pronouncement, not a rationale.
We conclude that whether Vail's consent to his business transaction with Dolenz was made after he received full disclosure concerning the transaction is in the nature of an avoidance or affirmative defense to professional misconduct. See TEX.R. CIV. P. 94. Dolenz had the burden to plead and prove Vail consented to the transaction after full disclosure, if he sought to rely on that as a defense to violation of DR 5-104(A). Id.
There is more than a scintilla of evidence that Dolenz and Vail had differing interests in the business relationship regarding the paintings and Vail expected Dolenz to exercise his professional judgment for Vail's protection. Further, Dolenz did not conclusively prove that Vail consented after full disclosure. Thus, the evidence supports the jury's finding that Dolenz violated DR 5-104(A), and the trial court erred in rendering judgment notwithstanding the verdict on this issue.[7] We sustain the State Bar's first point of error.
In his first and second cross-points, Dolenz challenges the factual sufficiency of the evidence that he violated DR 5-104(A). Having considered and weighed all of the evidence, not just the evidence that supports the verdict, we cannot conclude the jury's finding that Dolenz violated DR 5-104(A) is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Accordingly, we overrule Dolenz's first and second cross-points.
Because we have determined there is evidence to support the jury's finding in Question No. 2 that Dolenz violated DR 5-104(A), we would normally not consider the State Bar's assertion that there was evidence Dolenz violated another rule mentioned in Question No. 2, disciplinary rule of professional conduct 1.14(b). However, *269 whether Dolenz violated any of the other rules cited in Question No. 2, as well as in Question No. 3, is relevant to the sanctions the trial court may impose on remand. See TEX.R. DISCIPLINARY P. 3.10 (in imposing sanctions, the trial court shall consider the nature and degree of the professional misconduct for which the respondent is being sanctioned). Therefore, we will consider whether there is evidence Dolenz violated rule 1.14(b).
The jury was instructed that rule 1.14(b) provides:
Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
TEX. DISCIPLINARY R. PROF'L CONDUCT 1.14(b), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon Supp. 1999) (TEX. STATE BAR R. art. X, § 9). The State Bar contends there is evidence Dolenz violated this rule by retaining personal possession of the paintings he recovered rather than promptly delivering the paintings to Vail. We disagree.
Rule 1.14(b) became effective on January 1, 1990; the jury was not instructed on any previous version of the rule. There is no evidence that Dolenz recovered any of Vail's paintings after the rule went into effect. By mid-November 1989, Dolenz had recovered twelve paintings. Although Dolenz testified he recovered fifteen to seventeen of Vail's paintings, there is no evidence that any paintings were recovered in 1990. Thus, rule 1.14(b) was not applicable in this case.
Even if rule 1.14(b) was applicable in this case, there is no evidence Dolenz violated it. The only evidence on this issue is Dolenz's deposition testimony, and Dolenz indicated he complied with the rule. When asked what kind of accounting he gave to Vail regarding the recovered paintings, Dolenz testified he notified Vail when a painting was recovered and notified him of its location. Although Dolenz admitted he did not immediately give Vail his paintings, Dolenz testified Vail agreed to let Dolenz retain possession of the paintings.[8] There is no evidence to the contrary. Thus, there is no evidence to support a jury finding that Dolenz violated rule 1.14(b).
The State Bar's second point of error, in which it contends the trial court erroneously excluded evidence, is conditioned upon a finding that it had the burden to prove a lack of consent or disclosure under DR 5-104(A). Because we have determined Dolenz had the burden to prove consent and disclosure, we need not consider the State Bar's second point. See TEX.R.APP. P. 47.1. Also, in light of our disposition of the State Bar's first point of error, we need not consider Dolenz's third, fourth, and fifth cross-points.
DOLENZ'S REPRESENTATION OF HIS DAUGHTER IN SUIT AGAINST VAIL
In its third point of error, the State Bar contends the trial court erred in rendering judgment notwithstanding the verdict because there is evidence to support the jury's finding that Dolenz violated various disciplinary rules when he filed a lawsuit on behalf of his daughter against Vail. The jury was asked about this issue in Question No. 3:
Do you find from a preponderance of the evidence that the conduct of Bernard Dolenz with respect to his representation of Brenda Lievrouw in her suit against Dmitri Vail was a conflict of interest in violation of Texas Code of Professional Responsibility DR 1-102(A)(4) *270 and Texas Disciplinary Rules of Professional Conduct Rules 1.06(b)(1), 1.09(a)(1), and 8.04(a)(3)?[9]
The jury answered, "We do."
The jury was instructed that Texas Disciplinary Rule of Professional Conduct 1.06(b)(1), which applies after January 1, 1990, provides: "A lawyer shall not represent a person if the representation of that person involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm."[10] TEX. DISCIPLINARY R. PROF'L CONDUCT 1.06(b)(1). The rules of professional conduct provide for an exception to this prohibition. Rule 1.06(c) provides that a lawyer may represent a client in the circumstances described in rule 1.06(b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. TEX. DISCIPLINARY R. PROF'L CONDUCT 1.06(c). The jury was not instructed on this exception.
Dolenz contends the State Bar had the burden to prove that the general rule prohibiting representation applied in this case and to prove that the exception did not apply. Dolenz further contends the evidence is insufficient to support the jury's finding in Question No. 3 because the State Bar did not prove the exception did not apply. We disagree. The exception required proof that Dolenz reasonably believed his representation of each client would not be materially affected as well as proof of full disclosure and the client's consent. Thus, Dolenz would require the State Bar to present evidence as to his mental impressions and as to communications between him and his client. Again, the exception to the rule is in the nature of an avoidance or affirmative defense to professional misconduct. See TEX.R. CIV. P. 94. Thus, Dolenz had the burden to prove that the exception in rule 1.06(c) applied. See id.; Blecher & Collins, P.C. v. Northwest Airlines, Inc., 858 F. Supp. 1442, 1455 (C.D.Cal.1994) ("[t]he attorney who claims his client consented to a conflicting representation bears a heavy burden of demonstrating that all relevant facts relating to the conflict were disclosed and explained to the client"). Although Dolenz requested an instruction on rule 1.06(c), the trial court refused the request. Dolenz does not complain on appeal about the trial court's refusal of his requested instruction. Because this defense was not submitted to the jury and is not conclusively established, Dolenz has waived it. See TEX.R. CIV. P. 279.
We now consider whether there is evidence to support the jury's finding that Dolenz violated rule 1.06(b)(1) by representing his daughter in her suit against Vail. Rule 1.06(b)(1) prohibited Dolenz from representing his daughter in a "substantially related matter in which [her] interests are materially and directly adverse" to Vail's. Two matters are "substantially related," within the meaning of rule 1.06, when a genuine threat exists that a lawyer may divulge in one matter *271 confidential information obtained in the other because the facts and issues involved in both are so similar. See In re Epic Holdings, 985 S.W.2d 41, 51 (Tex. 1998) (discussing rule 1.09, which provides that a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client if it is the same or a substantially related matter).
Dolenz contends there is no evidence to prove his representation of Lievrouw involved "a substantially related matter" in which her interests were materially and directly adverse to Vail's interests. It is undisputed that, acting as Lievrouw's attorney, Dolenz filed suit against Vail on Lievrouw's behalf in the justice of the peace court. Although the jury did not hear direct evidence of the nature of Lievrouw's suit against Vail, we conclude the record contains sufficient evidence from which the jury could have reasonably inferred that Lievrouw's suit against Vail involved a matter "substantially related" to Dolenz's representation of Vail and that Lievrouw's interests were materially and directly adverse to Vail's interests.
The record reflects that while Dolenz was representing Vail, Vail executed four promissory notes in favor of Dolenz as payment for Dolenz's services. Two of the notes were secured by Vail's artwork and other property. Dolenz assigned the notes to Lievrouw. The month before Lievrouw sued Vail, Dolenz wrote to Vail to inform him that he had assigned the notes to Lievrouw and stated, "I understand that she is making demands to have these notes paid." On April 12, 1990, Lievrouw went to Vail's house with a moving van to pick up the paintings. Dolenz accompanied her. Also that day, Dolenz wrote to Vail: "You should understand that the collateral used for the notes that have been assigned to Brenda Lievrouw is encumbered and that you cannot make any disposition of this collateral until you have satisfied the notes that Mrs. Lievrouw has." Also on April 12, Dolenz filed a motion to withdraw as Vail's counsel in the suit against NCNB.
On the next day, Lievrouw filed a suit against Vail in justice of the peace court. The justice of the peace court's docket sheet reflects that Lievrouw was represented by Dolenz, and Dolenz admitted he filed that suit as his daughter's attorney. Vail filed a motion to disqualify Dolenz. When the suit was filed, the federal court had not yet ruled on Dolenz's motion to withdraw as Vail's counsel in the suit against NCNB.
From this evidence, the jury could have reasonably inferred that Lievrouw's suit against Vail was substantially related to the notes Vail had executed to pay Dolenz for his services. Clearly, as Lievrouw and Vail were on opposite sides of the lawsuit, there is evidence that Lievrouw's interests were materially and directly adverse to Vail's interests. Thus, there is more than a scintilla of evidence to support the jury's finding that Dolenz violated disciplinary rule of professional conduct 1.06(b)(1).[11] Accordingly, the trial court erred in rendering judgment notwithstanding the verdict on this issue. We sustain the State Bar's third point of error.
In his sixth and seventh cross-points, Dolenz challenges the factual sufficiency of the evidence that he violated rule 1.06(b)(1). In considering these points, we have weighed all of the evidence, not just the evidence that supports the verdict. We cannot conclude the jury's finding that Dolenz violated disciplinary rule of professional conduct 1.06(b)(1) is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Accordingly, we overrule Dolenz's sixth and seventh cross-points.
*272 To summarize, we conclude that because there is no evidence Dolenz recovered any of Vail's paintings after disciplinary rule of professional conduct 1.14(b) became effective and because there is uncontroverted evidence Vail agreed to let Dolenz temporarily retain his property, there is no evidence to support a finding that Dolenz violated rule 1.14(b) by failing to promptly deliver Vail's paintings to him. We also conclude, however, that the evidence is legally and factually sufficient to support the jury's findings that Dolenz violated DR 5-104(A) by entering into a prohibited business transaction with Vail and violated disciplinary rule of professional conduct 1.06(b)(1) by representing his daughter in a matter adverse to Vail. We therefore reverse the trial court's judgment, reinstate the jury's verdict as to questions two and three and the State Bar's attorney's fees, and remand the cause to the trial court for a determination of the appropriate sanction or sanctions to be imposed. See TEX.R. DISCIPLINARY P. 3.09.
NOTES
[1] The State Bar concedes there is no evidence to support the jury's finding concerning Dolenz's solicitation of Vail's business.
[2] According to a psychiatrist who examined Vail, Vail was born in 1903. The psychiatrist's affidavit was attached to the State Bar's response to Dolenz's motion for summary judgment and was not admitted into evidence at trial.
[3] Dolenz testified Vail ultimately did not prevail on his suit against NCNB because Vail failed to respond to summary judgment motions.
[4] The State Bar does not seek a reversal of the trial court's judgment notwithstanding the verdict regarding Dolenz's alleged violation of rule 8.04(a)(3). See TEX. DISCIPLINARY R. PROF'L CONDUCT 8.04(a)(3), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon Supp.1999) (TEX. STATE BAR R. art. X, § 9) (providing that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Nor does the State Bar assert there is evidence Dolenz violated rule 1.04(a). See TEX. DISCIPLINARY R. Prof'l Conduct 1.04(a) (involving illegal or unconscionable fees). The State Bar's disciplinary petition did not allege a violation of rule 1.04(a).
[5] Dolenz contends the only document relevant to Question No. 2 was the agreement for recovery of the paintings. We conclude that other documents, such as the trust, letters written by Dolenz, and the bill he sent Vail, are relevant to the agreement for recovery of the paintings.
[6] Rule 4.02 provides:
(a) In representing a client, a lawyer shall not communicate . . . about the subject of the representation with a person . . . the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
....
(d) When a person . . . that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer.
TEX. DISCIPLINARY R. PROF'L CONDUCT 4.02, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon Supp.1999) (TEX. STATE BAR R. art. X, § 9).
[7] Because the relevant events occurred in 1989, we do not consider whether Dolenz violated rule 1.08(a), the version of DR 5-104(A) in effect after January 1, 1990. TEX. DISCIPLINARY R. PROF'L CONCUCT 1.08(a).
[8] By the time of trial, Dolenz had tendered Vail's paintings to one of Vail's attorneys.
[9] The State Bar does not seek a reversal of the trial court's judgment notwithstanding the verdict regarding DR 1-102(A)(4) and rule 8.04(a)(3). DR 1-102(A)(4) was the version of rule 8.04(a)(3) in effect before January 1, 1990. It provided that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. TEX. STATE BAR R., art. XII, § 8, DR 1-102(A)(4) (Tex.Code of Prof'l Resp.), 34 TEX. B.J. 758 (1971, superseded 1990).
[10] As one commentator has noted:
Something seems radically out of place if a lawyer sues one of the lawyer's own present clients in behalf of another client. Even if the representations have nothing to do with each other, so that no confidential information is apparently jeopardized, the client who is sued can obviously claim that the lawyer's sense of loyalty is askew.
WOLFRAM, at § 7.3.2.
[11] Question No. 3 also included an instruction on rule 1.09(a), which involves conflicts of interest with former clients. TEX. DISCIPLINARY R. PROF'L CONDUCT 1.09(a)(3). Because Dolenz was still the attorney of record for Vail in the NCNB suit when the Lievrouw suit was filed, we do not consider rule 1.09(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2518103/ | 232 P.3d 1059 (2010)
2010 UT 33
Wendy GUDMUNDSON and Kay Gudmundson, Plaintiffs and Appellants,
v.
DEL OZONE; OzoneSolutions, L.C.; Johnson Controls, Inc.; and John and Jane Does 1-10, Defendants and Appellees.
No. 20080537.
Supreme Court of Utah.
May 14, 2010.
*1062 Randall K. Edwards, Rick S. Lundell, Brian K. Lofgren, Salt Lake City, for plaintiffs.
John R. Lund, R. Scott Young, Scott Powers, Salt Lake City, for defendant Del Ozone.
Heinz J. Mahler, Salt Lake City, for defendant OzoneSolutions, L.C.
Joseph E. Minnock, Sara N. Becker, Salt Lake City, Brian C. Lewis, Richard K. Wray, Chicago, IL, for defendant Johnson Controls, Inc.
Brent Gordon, Idaho Falls, ID, for amici Utah Association for Justice.
NEHRING, Justice:
INTRODUCTION
¶ 1 This appeal comes from a district court's grant of summary judgment on Ms. Gudmundson's claims against third parties for injuries she sustained in the workplace. Ms. Gudmundson, a former employee of the Utah State Prison, claims that ozone exposure from a newly installed ozone-laundry system injured her, causing significant brain injuries.
¶ 2 Ms. Gudmundson initially sought workers' compensation benefits. The Utah Labor Commission denied her claim because it concluded there was no causal link between her condition and her employment. In her subsequent civil action, the district court held that because the administrative law judge who presided over Ms. Gudmundson's workers' compensation proceeding against the State determined her injuries were not medically caused by ozone exposure, she was collaterally estopped from recovering damages from the installers, distributors, and manufacturers of the ozone-generating system. We affirm in part and reverse in part.
BACKGROUND
¶ 3 In December 2004, an ozone-generating system was installed in the Wasatch Laundry Facility of the Utah State Prison. The State contracted with Johnson Controls, which hired OzoneSolutions, L.C., to furnish the ozone system. OzoneSolutions contracted with Del Ozone, a component manufacturer, to provide the ozone generator.
¶ 4 At that time Wendy Gudmundson worked as a supervisor at the laundry facility. The ozone generator was first operated in the prison on December 13, 2004; Ms. Gudmundson complained of a headache the next day. She had similar headaches the next few days but continued to go to work. She went to the hospital on December 20 and was administered an MRI, which showed *1063 normal findings. The hospital also administered a spinal tap because her headache symptoms suggested meningitis. Ms. Gudmundson did not return to work at the prison. On January 27, 2005, she returned to the hospital and was diagnosed with a Chiari I Malformation, a condition requiring surgery on her brain stem.
¶ 5 In May 2005, Ms. Gudmundson filed an Application for Hearing with the Utah Labor Commission seeking compensation for her injuries, which she believed were due to ozone overexposure. Ms. Gudmundson alleged that she had sustained an occupational disease under Chapter 3, rather than a workplace injury under Chapter 2, of Utah Code Title 34A. The Utah Labor Commission requested an independent medical examination from Dr. Edwin Holmes. Dr. Holmes concluded that the Chiari I Malformation could not be caused by exposure to ozone, that Ms. Gudmundson had not shown common symptoms of ozone overexposure, and that the presence of the Chiari I Malformation was coincidental to the installation of the ozone-generator system. A panel commission headed by Dr. Joseph Jarvis, a physician whose participation was stipulated to by the parties, agreed with this analysis. As a result, Administrative Law Judge Debbie Hann (the "ALJ") denied Ms. Gudmundson's workers' compensation claim, citing lack of medical causation.
¶ 6 In September 2005, Ms. Gudmundson and her husband sued Johnson Controls, OzoneSolutions, and Del Ozone alleging negligent installation, strict liability based on a defective product, res ipsa loquitur, breach of implied warranty and merchantability, and negligent manufacture.[1]
¶ 7 Nearly two years after the commencement of the suit, Ms. Gudmundson changed counsel. Although Ms. Gudmundson claimed that the parties agreed in a telephone conference to extend the discovery deadline, all three defendants filed for summary judgment. In response, Ms. Gudmundson sought leave under rule 56(f) of the Utah Rules of Civil Procedure to conduct additional discovery to develop various elements of her claims.[2]
¶ 8 The district court denied Ms. Gudmundson's rule 56(f) motion and granted summary judgment in favor of all three defendants. The court denied the rule 56(f) motion because it had twice extended the discovery deadline and reasoned that Ms. Gudmundson had not adequately explained why her claims would survive summary judgment if given the benefit of additional discovery. The district court next determined that Ms. Gudmundson was collaterally estopped from challenging causation in her suit because the ALJ had already determined that her disease was not medically caused by the ozone-generator system. The court granted summary judgment to the defendants because it concluded that all of Ms. Gudmundson's claims required some showing of causation and that she had the opportunity to fully and fairly litigate causation in her workers' compensation proceeding. The district court also granted summary judgment to Del Ozone on the alternative ground that Ms. Gudmundson had not shown that the ozone generator was defective as required to prevail on her products liability claim.
¶ 9 Ms. Gudmundson appeals the district court's denial of her rule 56(f) motion, its determination that her claims against appellees were collaterally estopped, and its determination that she could not recover from Del Ozone because she had not presented evidence that the ozone generator was defective. *1064 Also at issue in this appeal is Del Ozone's and Johnson Controls' argument that this court does not have subject-matter jurisdiction over this case due to the untimeliness of Ms. Gudmundson's notice of appeal. We review each issue below.
STANDARD OF REVIEW
¶ 10 "We review the district court's decision to grant summary judgment for correctness, granting no deference to the [district] court." Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66, ¶ 40, 221 P.3d 256 (alteration in original) (internal quotation marks omitted). We review the district court's rule 56(f) decision under an abuse of discretion standard, asking whether the "grant or denial exceed[s] `the limits of reasonability.'" Price Dev. Co. v. Orem City, 2000 UT 26, ¶ 9, 995 P.2d 1237 (quoting Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994)).
ANALYSIS
I. THIS COURT HAS SUBJECT-MATTER JURISDICTION OVER THIS APPEAL
¶ 11 Del Ozone and Johnson Controls contend this court does not have jurisdiction over this appeal as to them because Ms. Gudmundson did not file a timely notice of appeal naming them as parties. We disagree and hold that Ms. Gudmundson timely appealed the district court's grant of summary judgment as to all parties.
¶ 12 A party wishing to appeal a final judgment or order of a district court must file a notice of appeal "within [thirty] days after the date of entry of the judgment or order appealed from." Utah R.App. P. 4(a). "An appeal may be taken from a district... court to the appellate court with jurisdiction over the appeal from all final orders and judgments, except as otherwise provided by law...." Utah R.App. P. 3(a). "The final judgment requirement is jurisdictional"; if not met, "we lack jurisdiction over the appeal and must dismiss it." Powell v. Cannon, 2008 UT 19, ¶ 12, 179 P.3d 799. "For an order or judgment to be final, it must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case." Id. ¶ 11 (internal quotation marks omitted). The order from which a party appeals is not final if "action[s] against other defendants ... remain[] alive." Kennedy v. New Era Indus., Inc., 600 P.2d 534, 536 (Utah 1979).
¶ 13 Here, the district court granted summary judgment to Del Ozone and Johnson Controls in an order dated March 24, 2008. It did not grant summary judgment to OzoneSolutions, however, because it found OzoneSolutions had not properly filed a separate memorandum in support of its motion for summary judgment. In response to the March 24 order, Ms. Gudmundson filed her first notice of appeal on April 2. The notice contained all three defendants as named parties and was given an appellate case number. Because the March 24 order did not include OzoneSolutions, however, it was not final as to all parties and was not appealable under our rules. Accordingly, this court issued an order dismissing Ms. Gudmundson's first notice of appeal without prejudice because it was filed prematurely.
¶ 14 Shortly after the March 24 order, OzoneSolutions filed a separate memorandum in support of summary judgment. The district court granted the motion on May 28, 2008. The court explained that it "hereby incorporates by reference its prior analysis as reflected in the Del Ozone summary judgment," and concluded that "this Ruling and Order shall constitute the final Order of the Court on this matter. No further Order need be submitted by the parties."
¶ 15 In response, Ms. Gudmundson filed her second notice of appeal on June 4, 2008. The caption included all three defendants. Ms. Gudmundson also stated that she wished to "consolidat[e]" the second notice of appeal with the first notice of appeal because it stemmed "from the same claim, ar[ose] from the same set of facts, and the [second] order... was based on the same legal theories and findings as the [first] order." The body of the appeal, however, stated that Ms. Gudmundson "appeals to the Utah Supreme Court the Ruling and Order Granting Defendant OzoneSolutions' Motion for Summary *1065 Judgment." On June 27, this court sent a letter with a different case number than the number assigned to the first notice of appeal, advising the parties that "the notice of appeal in this case has been filed."[3]
¶ 16 Del Ozone and Johnson Controls argue that this second notice of appeal is not an appeal from the March 24 order granting summary judgment to them. Rather, they claim that because the May 28 summary judgment order named only OzoneSolutions, any reference to Del Ozone or Johnson Controls in the second notice of appeal has no jurisdictional effect. We disagree.
¶ 17 The district court clearly stated that the May 28 summary judgment order operated as the final appealable order of the court. Although the second notice of appeal is not as clear as it could have been, its reference to the first notice of appeal is sufficient to properly subject all three defendants to this court's jurisdiction. Because Ms. Gudmundson filed this second notice of appeal within the required thirty-day period, we conclude Ms. Gudmundson timely appealed as to all parties. Having determined that we have subject-matter jurisdiction over this appeal, we now address whether the district court abused its discretion when it denied Ms. Gudmundson's rule 56(f) motion for additional time to conduct further discovery.
II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT DENIED MS. GUDMUNDSON'S RULE 56(f) MOTION FOR ADDITIONAL TIME FOR DISCOVERY
¶ 18 In response to Del Ozone and Johnson Control's Motions for Summary Judgment, Ms. Gudmundson moved the district court for time to conduct further discovery under rule 56(f) of the Utah Rules of Civil Procedure. Specifically, Ms. Gudmundson argued she needed to conduct discovery on (1) the interpretation of her MRIs, (2) the neurotoxicity or carcinogenic effects of an ozone-disinfectant system, (3) the water being pulled from a geothermal well below the prison, and (4) further information from Del Ozone relating to Del Ozone's denial of whether any of its instruments that are similar to the generator have ever been known to cause health problems.
¶ 19 The district court denied the motion. It reasoned that "[p]laintiffs have had two-and-a-half years to obtain the necessary evidence to oppose summary judgment, which the Court finds to have been more than adequate to uncover any available evidence to support their claims." The district court further noted that "plaintiffs have failed to identify the specific facts that are within the defendants' exclusive knowledge, the steps that they have taken to obtain that information, and how that information would help them respond to defendants' motions for summary judgment."
¶ 20 "We will not reverse the district court's decision to grant or deny a rule 56(f) motion for discovery unless it `exceeds the limits of reasonability.'" Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 20, 192 P.3d 858 (quoting Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994)). "The `limits of reasonability' standard is based on the specific circumstances of each case." Id. ¶ 21. In Overstock.com, we listed some of the relevant considerations in determining whether the grant of a rule 56(f) motion is warranted
(1) an examination of the party's rule 56(f) affidavit to determine whether the discovery sought will uncover disputed material facts that will prevent the grant of summary judgment or if the party requesting discovery is simply on a "fishing expedition," (2) whether the party opposing the summary judgment motion has had adequate time to conduct discovery and has been conscientious in pursuing such discovery, and (3) the diligence of the party moving for summary judgment in responding *1066 to the discovery requests provided by the party opposing summary judgment.
Id.
¶ 21 We now review Ms. Gudmundson's conduct measured against these three considerations. Ms. Gudmundson argues that the district court's denial of her rule 56(f) motion exceeds the limits of reasonability because she had just obtained new counsel and because the needed discovery would reveal evidence relevant to her claims. We find neither argument persuasive.
¶ 22 Although Ms. Gudmundson's counsel may be faulted for failing to conduct discovery in a conscientious and diligent manner to some extent, the district court's denial of the rule 56(f) motion was not unreasonable. Ms. Gudmundson filed her complaint on September 20, 2005, and fact discovery closed September 5, 2007. Ms. Gudmundson's current counsel entered his appearance on August 28, 2007. Although Ms. Gudmundson's current counsel entered an appearance only eight days before the close of fact discovery, Ms. Gudmundson has not sufficiently demonstrated that her former counsel was incompetent or otherwise unable to diligently perform the needed discovery. She has not shown why her former counsel could not perform the needed discovery.[4] Instead, Ms. Gudmundson concludes that defendants' suggestion in phone conferences that they would stipulate to a discovery extension forms an adequate basis on which to grant a rule 56(f) motion. This argument does nothing to explain why the district court abused its discretion when it found that Ms. Gudmundson had not adequately shown why she could not obtain the needed information within the previous two years.
¶ 23 Although rule 56(f) motions are to be granted liberally, in this case, Ms. Gudmundson's failure to adequately explain the lack of diligence does not convince us that the district court exceeded the limits of reasonability when it denied the motion. See Jensen v. Smith, 2007 UT App 152, ¶¶ 2, 4-5, 163 P.3d 657; Jones v. Bountiful City Corp., 834 P.2d 556, 560-62 (Utah Ct.App.1992).
¶ 24 Although the district court did not abuse its discretion when it denied Ms. Gudmundson's rule 56(f) motion, we must still address whether the district court nevertheless erred when it granted summary judgment to Del Ozone and Johnson Controls on the basis of collateral estoppel.
III. THE DISTRICT COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO DEL OZONE AND JOHNSON CONTROLS ON THE BASIS OF COLLATERAL ESTOPPEL BECAUSE MS. GUDMUNDSON'S WORKERS' COMPENSATION ADJUDICATIONS ON THE ISSUE OF CAUSATION DID NOT GARNER PRECLUSIVE EFFECT IN THIS CASE
¶ 25 The core issue in this appeal, and a question we have not confronted before, is whether a district court may give a workers' compensation adjudication on the issue of causation preclusive effect in a civil action against a nonemployer third-party defendant. Stated another way, can a third-party defendant use a workers' compensation adjudication on the issue of causation to block relitigation of that issue in a civil suit?
¶ 26 Ms. Gudmundson contends that the district court erred when it gave preclusive effect to her workers' compensation adjudication in her civil lawsuit against Johnson Controls, OzoneSolutions, and Del Ozone. She further contends that the district court erred when it declined to address whether her alternative theorythat ozone byproducts caused her injuries rather than overexposure to ozone itselfwas sufficient to overcome the application of collateral estoppel. We address each issue in turn.
*1067 A. The District Court Erred When It Gave Preclusive Effect to Ms. Gudmundson's Workers' Compensation Adjudication
¶ 27 We first address whether the district court erred when it gave Ms. Gudmundson's workers' compensation determination preclusive effect in her civil lawsuit against nonemployer third parties. We conclude that the district court erred.
¶ 28 The Utah Workers' Compensation Act represents a compromise between employee and employer. An injured employee receives "`a simple and speedy procedure which eliminates the expense, delay and uncertainty' in proving fault," Workers' Comp. Fund v. Wadman Corp., 2009 UT 18, ¶ 8, 210 P.3d 277 (quoting Wilstead v. Indus. Comm'n, 17 Utah 2d 214, 407 P.2d 692, 693 (1965)), while the employer is granted immunity from suit by the employee. See Utah Code Ann. § 34A-2-105 (Supp.2009) ("The right to recover compensation pursuant to [the Utah Workers' Compensation Act] ... is the exclusive remedy against the employer and ... any officer, agent, or employee of the employer....").[5] This compromise does not affect an employee's statutory right to sue negligent third parties. See Utah Code Ann. § 34A-2-106(1) (Supp.2009) ("When any injury ... is caused by the wrongful act or neglect of a person other than an employer, officer, agent, or employee of the employer... the injured employee ... may have an action for damages against the third person.").
¶ 29 Collateral estoppel, or issue preclusion, is a judicially-created doctrine that "`prevents parties or their privies from relitigating facts and issues in the second suit that were fully litigated in the first suit.'" Buckner v. Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842 (quoting Macris & Assocs. v. Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214). A party seeking to invoke collateral estoppel must show
(1) the issue decided in the prior adjudication is identical to the one presented in the instant action; (2) the party against whom issue preclusion is asserted was a party, or in privity with a party, to the prior adjudication; (3) the issue in the first action was completely, fully, and fairly litigated; and (4) the first suit resulted in a final judgment on the merits.
Id. ¶ 13.
¶ 30 Collateral estoppel serves three primary purposes: "(1) preserving the integrity of the judicial system by preventing inconsistent judicial outcomes; (2) promoting judicial economy by preventing previously litigated issues from being relitigated; and (3) protecting litigants from harassment by vexatious litigation." Id. ¶ 14.
¶ 31 This court has also recognized, however, that "[c]ollateral estoppel is not an inflexible, universally applicable principle," Id. ¶ 15 (internal quotation marks omitted), and that it "can yield an unjust outcome if applied without reasonable consideration and due care." Id. Accordingly, its "[a]pplication... may be unwarranted in circumstances where its purposes would not be served." Id. ¶ 14. Furthermore, its use may be limited in situations where it would subvert other legitimate policy considerations. See id. ¶ 15 ("Policy considerations may limit [the] use [of collateral estoppel] where the ... underpinnings of the doctrine are outweighed by other factors." (third alteration in original) (internal quotation marks omitted)).
¶ 32 Both parties have presented this court with a broad array of cases concluding that workers' compensation adjudications either do, or do not, have preclusive effect in civil lawsuits. These cases involve widely varying facts, procedural postures, and types of defendants. Some concern third-party tort claims. Many do not. In considering the Utah Workers' Compensation statutory scheme, our case law under that scheme, and cases from other jurisdictions, we conclude that while workers' compensation adjudications may be given preclusive effect in some instances, both the policy that justifies workers' compensation and the purposes of the *1068 collateral estoppel doctrine prevent the application of collateral estoppel in this case.
¶ 33 We have held that administrative adjudications may be given preclusive effect. See Career Serv. Review Bd. v. Utah Dep't of Corr., 942 P.2d 933, 938 (Utah 1997); Salt Lake Citizens Cong. v. Mountain States Tel. & Tel. Co., 846 P.2d 1245, 1251 (Utah 1992) ("[T]he doctrine of res judicata has been applied to administrative agency decisions in Utah since at least 1950."). In this context, collateral estoppel generally applies "`when an administrative agency has acted in a judicial capacity in an adversary proceeding to resolve a controversy over legal rights and to apply a remedy.'" Career Serv., 942 P.2d at 938 (quoting Mountain States, 846 P.2d at 1251). In Stoker v. Workers' Compensation Fund, however, we suggested that workers' compensation adjudication may not have the same collateral-estoppel applications as other administrative adjudications. 889 P.2d 409, 411 (Utah 1994) (finding that workers' compensation remedies "are not analogous to an ordinary lump-sum judgment that the common law provides for personal injury actions," partly because "an award of benefits does not generally have the res judicata effect of a judgment").
¶ 34 Indeed, if workers' compensation adjudications were given preclusive effect in suits against nonemployer third parties, injured workers would face a vexing dilemma: either elect the more simple and immediate relief afforded by workers' compensation or the more complex but potentially more lucrative civil litigation process. See Messick v. Star Enter., 655 A.2d 1209, 1212-13 (Del. 1995) (explaining this dilemma); Cunningham v. Prime Mover, Inc., 252 Neb. 899, 567 N.W.2d 178, 182-83 (1997) (same). The Utah Workers' Compensation Act does not require an employee to make such an election of remedies.
¶ 35 On the one hand, Utah Code section 34A-2-105(1) clearly explains that a claim under the Workers' Compensation Act is "the exclusive remedy against the employer... in place of any and all other civil liability whatsoever, at common law or otherwise, to the employee." (emphasis added). Section 34A-2-106, on the other hand, clearly preserves an employee's civil remedies against nonemployer third parties when it states,
(1) When any injury or death for which compensation is payable under [the Workers' Compensation Act] ... is caused by the wrongful act or neglect of a person other than an employer, officer, agent, or employee of the employer:
...
(b) the injured employee or the employee's heirs or personal representative may have an action for damages against the third person.
(emphasis added).
¶ 36 We decline to read these provisions as permitting an employee to engage third parties in the rigor of litigation while containing an implied threat that rulings made by an administrative law judge in a workers' compensation adjudication may, through the invocation of collateral estoppel, derail the employee's lawsuit. To compel an election of this nature would subvert the general purpose behind workers' compensation, which is "to provide compensation to injured employees `by a simple and speedy procedure which eliminates the expense, delay and uncertainty' in proving fault." Wadman Corp., 2009 UT 18, ¶ 8, 210 P.3d 277 (quoting Wilstead, 407 P.2d at 693). Employees must not be forced to confront such a risk.
¶ 37 Furthermore, giving preclusive effect to Ms. Gudmundson's workers' compensation adjudication does not necessarily serve the purposes of collateral estoppel. The district court granted summary judgment based on defensive collateral estoppel, which "prevent[s] a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant."[6]Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 4, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). Typically, courts favor the use of defensive *1069 collateral estoppel because it "gives a plaintiff a strong incentive to join all potential defendants in the first action," which, in turn, accomplishes the general purposes of collateral estoppel: increased judicial efficiency, prevention of inconsistent judicial outcomes, and protection of litigants from vexatious lawsuits. See id. at 329-30, 99 S. Ct. 645; Buckner, 2004 UT 78, ¶ 14, 99 P.3d 842.
¶ 38 Under the unique facts of this case, however, giving preclusive effect to Ms. Gudmundson's workers' compensation adjudication does not promote the purposes of collateral estoppel. Because the Workers' Compensation Act is only available to remedy wrongs committed by employers or their agents, Ms. Gudmundson could not involve third-party defendants in her workers' compensation adjudication even if she had so desired. Accordingly, her subsequent lawsuit against defendants was neither a waste of judicial resources nor an attempt to harass the defendants through vexatious litigation.[7]See Heine v. Simon, 702 N.W.2d 752, 762 (Minn.2005) ("[G]iven the exclusivity of the Workers' Compensation Act as a remedy against the employer, invocation of collateral estoppel in an employee's third-party action in a case ... where the third party had, and could have had, no involvement in the workers' compensation proceedings does not necessarily serve the purposes of collateral estoppel."). We are therefore unable to discern any of the recognized justifications for the application of collateral estoppel in this case. Rather, it appears that the sole effect of collateral estoppel would be to shield third-party defendants from confronting claims the Utah Legislature has expressly preserved for employees under the Utah Workers' Compensation Act. See Utah Code Ann. § 34A-2-106. We therefore decline to adopt a rule that would categorically give preclusive effect to workers' compensation adjudications in civil actions brought by an injured worker against nonemployer third parties.
B. Ms. Gudmundson Did Not Sufficiently Plead Her Alternative Theory of Causation
¶ 39 Ms. Gudmundson also argues that collateral estoppel should not apply in her case because the Utah Labor Commission did not consider the issue of whether her injuries were caused by exposure to ozone byproducts. She argues that because this theory was never presented to the ALJ, it presents a different issue to the district court, one that defeats the requirement of issue congruence necessary for the application of collateral estoppel. We hold that Ms. Gudmundson did not adequately plead her alternative theory of causation.[8]
¶ 40 The issue before us is to what extent a causation theory articulated for the first time in the context of a summary judgment motion must have appeared in prior pleadings in order to command consideration from the district court. To resolve this issue, we turn *1070 to our pleading requirements. Our central reference is rule 8 of the Utah Rules of Civil Procedure. Rule 8 mandates that a pleading for a claim of relief must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Utah R. Civ. P. 8(a). We have consistently noted that Utah's notice pleading requirements are liberal and "all that is required is that the pleadings be sufficient to give fair notice of the nature and basis of the claim asserted and a general indication of the type of litigation involved." Guardian Title Co. v. Mitchell, 2002 UT 63, ¶ 15 n. 4, 54 P.3d 130 (internal quotation marks omitted).
¶ 41 Ms. Gudmundson's complaint states only that "ozone overexposure" caused her injuries. Not until her memorandum in opposition to summary judgment did she argue that ozone combined with other chemicals present in the laundry facility caused the formation of ozone byproducts, which caused her to develop symptoms indicative of chemical toxicity. Although ozone overexposure and ozone-byproduct toxicity may not be mutually exclusive concepts, they depend on different factual theories and present different types of legal liability. For instance, one could be strictly liable for the ozone overexposure if the ozone generator is found to be defective. A claim that the presence of ozone combined with other chemicals ordinarily present in a laundry facility caused injury to a specific employee, however, sounds in negligence. Ms. Gudmundson's failure to give appellees notice that she intended to pursue both theories precludes her from arguing that chemical toxicity caused her injuries.
IV. THE DISTRICT COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO DEL OZONE ON THE GROUNDS THAT MS. GUDMUNDSON HAD FAILED TO PRODUCE SUFFICIENT EVIDENCE THAT DEL OZONE'S GENERATOR WAS DEFECTIVE
¶ 42 In addition to granting defendants' summary judgment motions on the basis of collateral estoppel, the district court also granted summary judgment to Del Ozone, the manufacturer of the ozone generator, on the ground that Ms. Gudmundson had "failed to produce evidence that Del Ozone's ozone generator was defective." Ms. Gudmundson argues that summary judgment was improper because she presented sufficient evidence that (1) the ozone generator was unreasonably dangerous due to a design defect[9] and (2) even if the generator itself was not defective, Del Ozone is liable for defects in the ozone-disinfection system as a whole.
¶ 43 We agree with Ms. Gudmundson and hold that the district court erred when it granted summary judgment to Del Ozone. Ms. Gudmundson presented sufficient evidence to create a genuine issue of material fact as to whether (1) the ozone generator itself was defectively designed and (2) the ozone-disinfection system as a whole was defective under a component-parts theory.
¶ 44 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." Utah R. Civ. P. 56(c). When reviewing a trial court's grant of summary judgment, "we give the court's legal decisions no deference, reviewing for correctness, while reviewing the facts and inferences to be drawn therefrom in the light most favorable to the nonmoving party." Dairy Prod. Servs., Inc. v. City of Wellsville, 2000 UT 81, ¶ 15, 13 P.3d 581.
¶ 45 "Products liability always requires proof of a defective product, which can include `manufacturing flaws, design defects, and inadequate warnings regarding use.'" Bishop v. GenTec, Inc., 2002 UT 36, ¶ 25, 48 P.3d 218 (quoting Grundberg v. Upjohn Co., 813 P.2d 89, 92 (Utah 1991)). The liability "is for the defective product, and not merely for any underlying negligence." Id.
*1071 A. Ms. Gudmundson Presented Sufficient Evidence That the Ozone Generator Had a Design Defect
¶ 46 The district court held that Ms. Gudmundson "failed to produce evidence that Del Ozone's ozone generator was defective."[10] Ms. Gudmundson argues that the evidence presented to the district court was sufficient to create a disputed issue of material fact as to whether the generator was defectively designed. Specifically, she argues that the generator lacked an ambient air monitor or a shut-off valve that would automatically shut down the system if pollutant levels exceeded federally mandated EPA or OSHA limits. Del Ozone argues that an absence of air monitors and shut-off valves does not qualify as a defect for purposes of products liability, strict liability, negligent manufacture, or breach of implied warranty. Rather, Del Ozone argues that such monitors and shut-off valves are accessories, the absence of which does not evidence a defect in the design of the generator.[11]
¶ 47 Under the Utah Product Liability Act, a product is defective if it is "unreasonably dangerous" at the time of sale by the manufacturer.[12] Utah Code Ann. § 78B-6-703(1) (2008). The Act defines a product as "unreasonably dangerous" if it
was dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in that community considering the product's characteristics, propensities, risks, dangers, and uses together with any actual knowledge, training, or experience possessed by that particular buyer, user, or consumer.
Id. § 78B-6-702.
¶ 48 Ms. Gudmundson argued to the district court that the generator lacked certain features that made it unreasonably dangerous: an ambient air monitor and an automatic shut-off valve. Del Ozone, in contrast, argued that such features are accessories, the inclusion of which has no bearing on whether the generator is unreasonably dangerous. Viewing the facts and resulting inferences in a light most favorable to Ms. Gudmundson, we conclude that she presented sufficient evidence to create a question of material fact as to whether the ozone generator was unreasonably dangerous at the time of sale and therefore defective.
¶ 49 Ms. Gudmundson presented the deposition of Mr. Downey, the owner of OzoneSolutions, who concedes that the generator lacked certain shut-off features and that these features are available and sometimes installed with other generators.[13] She also *1072 presented the district court with a portion of the Occupational Safety Hazardous Occupation Encyclopedia, which specifically states, "[w]hen ozonizers are installed, they should be provided with ozone specific detectors." Additionally, Ms. Gudmundson attached emails between the parties and prison officials that suggest the ozone levels at the prison exceeded acceptable levels and that the system was shut down at least once due to ozone levels. This is not a situation where Ms. Gudmundson has argued that merely because she was injured, the product must have been defective; rather, Ms. Gudmundson specifically alleges that a product is defectively designed because it lacks certain features. See Kleinert v. Kimball Elevator Co., 854 P.2d 1025, 1027 (Utah Ct.App.1993) (holding the mere allegation that "because she was injured, the [product] must have been defective" was not enough to survive summary judgment); Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418 (Utah Ct.App. 1994) ("[I]t is not enough to simply show that the product failed.").
¶ 50 We therefore reverse the district court's determination that Ms. Gudmundson presented insufficient evidence that the ozone generator was defective and remand for consideration of the claim. Additionally, as explained below, the district court prematurely granted summary judgment to Del Ozone because Del Ozone may be liable for defects in the ozone-generator system.
B. The District Court Erred When It Granted Summary Judgment to Del Ozone Because a Manufacturer of a Nondefective Product May Be Liable for the Design Defects of a System
¶ 51 The district court's order granting summary judgment to Del Ozone focused on Ms. Gudmundson's failure to present evidence that the generator itself was defective. During the hearing on the summary judgment motions, however, the district court noted, "While it is true that there appears to be some evidence that there may have been some venting issues, I found nothing that indicated factually a problem with the generator itself."
¶ 52 Ms. Gudmundson now argues that the district court erred and that Del Ozone is liable for design defects that may exist in the ozone-disinfection system as a whole. Ms. Gudmundson points to deposition statements made by the owner of OzoneSolutions, Mr. Downey, that in the past he had collaborated with engineers from Del Ozone on the design of ozone-generator systems and purchased all the component parts necessary for the Utah Prison system from Del Ozone. Del Ozone argues that it merely filled OzoneSolutions' purchase order, and that OzoneSolutions was the only party responsible for selecting the size of the generator and installing the necessary components for the system. The question before us then is not whether defects actually exist in the design of the system, but whether Del Ozone, as a component manufacturer of a nondefective product, may be held liable for any defects in the system.
¶ 53 Although this court has not explicitly addressed to what extent installation of a nondefective product in a defective system results in tort liability, we have required that
in order to recover on strict liability against a seller, the plaintiff must prove (1) that a defect or defective condition of the product made it unreasonably dangerous, (2) that the defect was present at the time of the product's sale, and (3) that the defective condition was the cause of the plaintiff's injuries.
Schaerrer v. Stewart's Plaza Pharmacy, Inc., 2003 UT 43, ¶ 16, 79 P.3d 922. The rule set forth in Schaerrer provides the boundaries of manufacturer liability, but it does not provide guidance on what constitutes a "product" or when movement of the "product" constitutes a "sale."
¶ 54 To answer this question, we find sufficient guidance in the principle known as *1073 the "component-parts doctrine." Under this doctrine, a manufacturer of a component part who participates in the design of the final product or system may be held liable for injuries caused by the final product even if the component itself was not defective. See, e.g., Davis v. Komatsu Am. Indus. Corp., 42 S.W.3d 34, 38-39 (Tenn.2001) (providing exhaustive list of jurisdictions that have adopted the doctrine); see also House v. Armour of Am., 886 P.2d 542, 553 (Utah Ct.App.1994) ("[S]trict liability for a component manufacturer is limited when that component is integrated into a larger unit, thus, `if the component part manufacturer does not take part in the design or assembly of the final system or product, he is not liable for defects in the final product if the component part itself is not defective.'" (emphasis added) (quoting Koonce v. Quaker Safety Prod. & Mfg. Co., 798 F.2d 700, 715 (5th Cir.1986))).
¶ 55 The Third Restatement of Torts, Products Liability, section 5 sets forth the elements required for nondefective component-manufacture liability. It states:
One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
...
(b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and
(2) the integration of the component causes the product to be defective, as defined in this Chapter; and
(3) the defect in the product causes the harm.[14]
¶ 56 The Third Restatement embraces the policy-based rationale that although manufacturers of nondefective component parts at the time of sale should not bear the risk of ensuring the integrated product's safety, a component manufacturer who participates in the design of the product should bear some liability risk. Because we find this policy-based rationale persuasive, we adopt this section of the Third Restatement.
¶ 57 Liability under the Third Restatement for a nondefective product requires two findings. First, the participation must be substantial. Second, the integration of the nondefective component must cause the integrated product to be defective. Restatement (Third) of Torts: Prods. Liab. § 5(b)(1)-(2) (1998). We now discuss the meaning of both elements.
¶ 58 First, the manufacturer of a nondefective component must have substantially participated in the design of the integrated product. Id. § 5(b)(1). To substantially participate, the manufacturer must have had some control over the decision-making process of the final product or system. See Jacobs v. E.I. du Pont de Nemours & Co., 67 F.3d 1219, 1242 (6th Cir.1995) ("[W]here a component part is not dangerous until incorporated into a finished product, courts have held that the component-part supplier cannot be held liable ... unless the supplier exercised some control over the final product's design."); Noonan v. Texaco, Inc., 713 P.2d 160, 164 (Wyo.1986) (holding that summary judgment was proper when defendants "manufactured only component parts" and "had no control over the manner in which [the final product] was constructed," or the "decision[s] concerning the assembly of safety features"). The requirement that a component manufacturer have some control over the design of the integrated product prevents the imposition of a duty to "foresee all the dangers that may result from the use of a final product which contains its component part or materials." Bond v. E.I. Du Pont De Nemours & Co., 868 P.2d 1114, 1118-19 (Colo.Ct.App.1993) (holding a manufacturer of Teflon not liable for injuries caused to patients given TMJ implants partially made from Teflon). For instance, a component manufacturer does not have a duty to analyze or anticipate the design of the product or system of which its component *1074 is a part nor does knowledge of the ultimate design by itself constitute substantial participation. See Childress v. Gresen Mfg. Co., 888 F.2d 45, 48-49 (6th Cir.1989); Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 675 A.2d 620, 629-30 (1996) (The duty underlying the component-parts doctrine does not extend to "the anticipation of how manufactured components not in and of themselves dangerous or defective can become potentially dangerous dependent upon the nature of their integration into a unit designed, assembled, installed, and sold by another." (internal quotation marks omitted)).
¶ 59 Liability for failure to install a safety device therefore depends on whether the component manufacturer was in a position to control the decision making involved in the design of the integrated product. Requiring that a component manufacturer have control over the decision making involved in the design of the integrated product ensures that "[m]ere suppliers [are not] expected to guarantee the safety of other manufacturers' machinery." Crossfield v. Quality Control Equip. Co., 1 F.3d 701, 704 (8th Cir.1993). The act of "simply design[ing] a component to its buyer's specifications" or "providing... technical services or advice" about the component does not in and of itself constitute substantial participation in the design of the integrated product. Restatement (Third) of Torts: Prods. Liab. § 5 cmt. e. However, if the specifications provided are obviously unreasonably dangerous, the component manufacturer may be deemed to have control over the integrated product and therefore be deemed to have substantially participated. Zaza, 675 A.2d at 629.
¶ 60 Second, under the Restatement, the integration of the nondefective product must also cause the integrated product to be defective. Restatement (Third) of Torts: Prods. Liab. § 5(b)(2). The Restatement therefore places another factual limitation on when a manufacturer of a nondefective product that substantially participates in the design of the integrated product may be liable.
¶ 61 Because we adopt the component-parts doctrine today, the district court understandably did not make factual findings on whether the ozone generator is a nondefective component, the integration of which caused the system to be defective, or whether Del Ozone substantially participated in the design of the system installed at the prison. The district court also did not make findings on whether the ozone-generator system was defective in its totality. We therefore remand to the district court for a determination of whether Del Ozone is liable as a component manufacturer for defects, if any, in the ozone-disinfection system.[15]
CONCLUSION
¶ 62 We hold that the district court did not abuse its discretion when it declined to grant Ms. Gudmundson's rule 56(f) motion. Although Ms. Gudmundson is not entitled to further discovery, we reverse the district court's grant of summary judgment in favor of the defendants on the basis of collateral estoppel. But Ms. Gudmundson's alternative argument, that ozone-byproduct exposure is a different issue than ozone overexposure and therefore not subject to collateral estoppel was not sufficiently pled; the district court therefore did not err in failing to consider it. Finally, we hold that the district court erred as a matter of law in finding that Ms. Gudmundson did not sufficiently allege that the ozone generator was defective. First, Ms. Gudmundson provided sufficient evidence to create an issue of material fact as to whether the generator itself had a design defect. Second, because we adopt the component-parts doctrine today, we remand with instructions that the district court apply that doctrine to Del Ozone consistent with this opinion.
¶ 63 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice PARRISH concur in Justice NEHRING's opinion.
NOTES
[1] Ms. Gudmundson also appealed to the Labor Commission's Appeals Board on November 2, 2006, seeking to reopen the proceedings. Ms. Gudmundson wished to pursue a different theory, namely, that the ozone exposure caused her to have a spinal tap, which, in turn, caused the Chiari I Malformation. The Appeals Board affirmed the ALJ's decision and declined to reopen the proceedings. Ms. Gudmundson did not appeal this decision to the court of appeals as permitted by the Utah Administrative Procedures Act.
[2] Depositions have been taken from Doug Wright, facilities coordinator at the Utah Department of Corrections; George Eddleman, former laundry employee at the Utah Department of Corrections; John Downey, part owner of OzoneSolutions; and Ms. Gudmundson. Ms. Gudmundson has since obtained experts that have diagnosed her with complications due to ozone byproducts such as chemical encephalopathy, chemical sensitivity, and vagal maladaption.
[3] On June 28, Ms. Gudmundson filed a third notice of appeal out of an "abundance of caution." She indicated that to the degree it was unnecessary, the third notice of appeal should be stricken. Because this third notice of appeal was filed thirty-one days after the May 28 summary judgment order, however, it was untimely. See Utah R.App. P. 4(a) ("[T]he notice of appeal ... shall be filed ... within [thirty] days after the date of entry of the judgment or order appealed from.").
[4] Indeed, during the hearing on the parties' motions for summary judgment, the district court noted Ms. Gudmundson had failed to present evidence that she could meet the requirements of a rule 56(f) motion. For instance, the district court stated, "You haven't even shown me how the discovery that was conducted under prior counsel failed to give you adequate tools to respond to these motions." The district court also noted, "[Y]ou've failed to point out to me even the slightest bit how none of that discovery could allow you to answer or [to] mount a response to their motion for summary judgment."
[5] The Workers' Compensation Act has been amended since the complaint was filed in this case. Because the changes do not substantively affect the provisions at issue here, we cite to the current version for convenience.
[6] In contrast to defensive collateral estoppel, offensive collateral estoppel "occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 4, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979).
Offensive use of collateral estoppel .. . creates precisely the opposite incentive [as defensive use]. Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a "wait and see" attitude, in the hope that the first action by another plaintiff will result in a favorable judgment. Thus offensive use of collateral estoppel will likely increase rather than decrease the total amount of litigation....
Id. at 330, 99 S. Ct. 645 (citations omitted).
[7] Additionally, an employee who receives a favorable outcome from a workers' compensation adjudication would have little hope of enjoying any offensive collateral estoppel use of that result in a third-party civil action. First, the employer would have little incentive to "defend vigorously" the workers' compensation adjudication as compared to the full-blown civil action faced by the third-party defendants. See Parklane Hosiery, 439 U.S. at 330, 99 S. Ct. 645. Second, the minimal amount of procedure available in workers' compensation adjudications would likely make offensive use of collateral estoppel unfair, especially because the third-party defendants would be unable to choose the forum in the first place. See id. at 330-31, 99 S. Ct. 645.
[8] The district court did not address whether the ozone-byproducts theory constituted a different issue such that the elements of collateral estoppel were not satisfied. Instead, the district court determined that it could not hear the theory because it was not first argued to the ALJ or the Appeals Board. In other words, Ms. Gudmundson had not exhausted her remedies as to that particular theory and was therefore barred from arguing the theory in district court.
We disagree. The Workers' Compensation Act does not require an employee who brings a claim against a third party to first exhaust his or her remedies through the administrative process. See Utah Code Ann. § 34A-2-106 (Supp.2009). Regardless, because we find that Ms. Gudmundson failed to adequately plead her alternative theory of causation to the district court, she is precluded from arguing that chemical toxicity caused her injuries.
[9] Although it is not entirely clear whether Ms. Gudmundson argued that the ozone generator had a manufacturing defect or a design defect, we interpret her argument that the generator was unreasonably dangerous because it did not contain an ambient air monitor or automatic shut-off valve as a design defect claim.
[10] It is unclear whether the district court concluded that Ms. Gudmundson failed to produce evidence that the generator was defective under a defective product theory, design defect theory, or both. Because we find that Ms. Gudmundson produced evidence sufficient to overcome summary judgment on a design defect theory, we address that issue alone.
[11] Del Ozone also argues that the generator was not defective because it (1) never "malfunctioned in any way" and (2) "was not defective when it was installed." These arguments would refute an assertion that a particular generator was defective. But Ms. Gudmundson argues that the generator was defective as designed because it did not contain an ambient air monitor or an automatic shut-off valve. In other words, even if the generator performed exactly as intended, its design was still unreasonably dangerous to the prudent user.
[12] In 2008, the Utah Legislature revised and recodified Title 78. The Legislature moved the Utah Product Liability Act from sections 78-15-1 to -7 to sections 78B-6-701 to -707. Because the change does not affect our analysis and because the Utah Product Liability Act was held constitutional as amended in Egbert v. Nissan Motor Co., 2010 UT 8, ¶ ¶ 9-10, 21, 228 P.3d 737, we refer to the current numbering scheme. Under that scheme, section 78B-6-703(1) provides
In any action for damages for personal injury, death, or property damage allegedly caused by a defect in a product, a product may not be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer.
[13] It is unclear from the record whether the shut-off valves and ambient air monitors are physically attached to the generator or to other parts of the ozone-production system. Of course, this inquiry is necessarily a part of whether the lack of the shut-off features constitutes a design defect with the generator itself and is therefore a determination more suitable for the trier of fact. If the features are indeed accessories with no bearing on the nondefectiveness of the generator, the absence of the features may still be a design defect of the entire ozone-generator system. Additionally, on remand, Ms. Gudmundson must show that the defect, if any, caused her injuries. See Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418 (Utah Ct.App.1994) ("It is not enough to merely contend that a defect existed, show that an accident occurred, and assume the two are necessarily related.").
[14] We do not quote section (a) of the Restatement because it only addresses situations in which the component part itself is defective. Because this situation is adequately addressed in our case law, we do not wish to create confusion by applying the Restatement to those situations.
[15] We note that the district court's order granting summary judgment to Del Ozone does not address Ms. Gudmundson's negligence claims. Our treatment of the component-parts doctrine reaches only those claims brought under a products liability theory. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1410950/ | 890 F. Supp. 444 (1995)
Johnsie RILEY, et al., Plaintiffs,
v.
David H. MURDOCK, et al., Defendants.
No. 92-442-CV-5-BR.
United States District Court, E.D. North Carolina, Western Division.
June 13, 1995.
*445 *446 *447 Thomas Fleming Taft, Jr., Taft, Taft & Haigler, Greenville, NC, for plaintiffs.
Jeffrey C. Howard, Ralph M. Stockton, Jr., Petree, Stockton & Robinson, Winston-Salem, NC, Debbie Weston Harden, Womble, Carlyle, Sandridge & Rice, Charlotte, NC, Hubert Humphrey, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, NC, Walter F. Brinkley, Stephen W. Coles, Brinkley, Walser, McGirt, Miller, Smith & Coles, Lexington, NC, David Calep Wright, III, Mark W. Merritt, Robinson, Bradshaw & Hinson, P.A., Charlotte, NC, and Martha Jones Mason, Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, Raleigh, NC, for defendants.
ORDER
BRITT, District Judge.
This matter is before the court on motions for summary judgment filed by the following defendants: (1) Fieldcrest Cannon, Inc. (Fieldcrest); (2) Otto Stolz (Stolz); (3) George A. Batte, Jr., Estate of J. Harris Cannon, Harold P. Hornaday, Andrew W. Adams, Joseph C. Ridenhour, Hubert J. Toumey and James R. Jolly (the Directors); and (4) David H. Murdock (Murdock). All motions have been extensively briefed and are now ripe for decision.
I. FACTS
The rather complicated and involved facts surrounding this matter are extensively set out in an Order of this court dated 30 July 1993 and repeating them here is not necessary. However, a brief sketch of the relevant events leading up to the motions at bar would facilitate a more complete understanding of the discussion to follow.
This action is brought under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq.[1] Plaintiffs are employees or retirees of Cannon Mills, Inc. (Cannon) and are participants in Cannon's retirement plan (the Plan). They allege that the defendants breached their fiduciary duty by failing to prudently manage *448 the Plan for the benefit of its participants. Specifically, plaintiffs challenge the seizure of surplus plan assets and the purchase of an annuity backed by junk bonds to increase the dollar amount of the surplus.
Cannon has had several different retirement plans over its many years in operation. Until 1979, the employees contributed to the Plan. For the purposes of this matter, this has become known as the 1976 Plan. In 1979, the 1976 Plan was amended by eliminating employee contributions and altering the termination clause to specifically provide that any surplus assets at termination would revert to the employer rather than the plan participants. This will be referred to as the 1979 Plan.
Approximately six months after this amendment, defendant Murdock began purchasing substantial amounts of Cannon stock and in 1982, bought Cannon outright. Plaintiffs allege that in December 1985 Murdock caused the 1979 Plan to be amended to provide for the reversion of the surplus assets to one of his corporations and the purchase of an annuity upon termination of the Plan. The Plan was allegedly terminated on 18 December 1985.
In June 1986 defendant Fieldcrest merged with Cannon. On 2 July 1986, an annuity was purchased to fund obligations to participants of Cannon's terminated retirement plan. The purchase was negotiated by both Murdock and Fieldcrest. Ultimately, the company issuing the annuity went into receivership, and plaintiffs contend that they have suffered as a result. In sum, plaintiffs allege that the entire series of transactions described above was an elaborate scheme orchestrated in violation of ERISA to allow Fieldcrest to buy Cannon at a reduced price and made it possible for Murdock to receive the surplus assets upon termination of the 1979 Plan.
II. DISCUSSION
Summary judgment is only appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The United States Supreme Court has written:
In our view, the plain language of rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the absence of an element to that party's case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The Fourth Circuit has recently commented on Celotex and firmly agreed with the concept that the party moving for summary judgment does not have to produce evidence, but can prevail on summary judgment by simply arguing that there is an absence of evidence by which the nonmovant can prove its case. See Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1254, 131 L. Ed. 2d 135 (1995). Each of the four motions for summary judgment will be analyzed pursuant to the above-stated and well-established rules of law.
A. Fieldcrest's Motion for Summary Judgment
Plaintiffs allege that Fieldcrest had fiduciary duties pursuant to 29 U.S.C. § 1002(21) by virtue of the authority and responsibility it assumed under Section 4.03 of the Stock Purchase Agreement dated 3 December 1985 and the fact that Fieldcrest assumed responsibility for the administration of the Plan. Plaintiffs assert that Fieldcrest violated these duties and conspired with other defendants to do so. Plaintiffs admit that Fieldcrest did not receive any of the surplus assets upon termination of the Plan; however, they maintain that the purchase price Fieldcrest paid to acquire Cannon is less than it would have been if Fieldcrest had not allowed Murdock to keep the Plan, amend the Plan in order to allow the surplus to revert to Murdock, and agree to the purchase of an imprudent annuity.
Fieldcrest maintains that it was never a fiduciary under ERISA. It further asserts that it never participated in the administration of the Plan, never attempted to and did not purchase the Plan, and had no involvement *449 in the termination of the Plan or the purchase of the annuity from Executive Life.
A person or entity is a fiduciary with respect to an ERISA-governed plan:
To the extent (i) he [or it] exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he [or it] renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he [or it] has any discretionary authority or discretionary responsibility in the administration of such plan....
29 U.S.C.A. § 1002(21)(A). Subsection (ii) is not at issue; however, plaintiffs argue that Fieldcrest had discretionary authority over the Plan pursuant to the Stock Purchase Agreement and that it actually exercised discretionary authority over the disposition of Plan assets by its involvement in the purchase of the Executive Life annuity.
As explained above, on a motion for summary judgment a defendant does not have to prove an absence of evidence to support a plaintiff's case because the burden rests with the plaintiff to support all elements of its claim. As the discussion below will make evident, plaintiffs are unable to satisfy the burden with respect to proving Fieldcrest had a fiduciary duty under ERISA.
1. Fiduciary Duty Under § 1002(21)(A)(iii)
Plaintiffs assert that the language of the Stock Purchase Agreement entered into by Cannon and Fieldcrest gave Fieldcrest discretionary authority and responsibility with respect to the Cannon Plan, and thus, a fiduciary duty under ERISA. The relevant portion of the Stock Purchase Agreement at issue is Section 4.03 addressing employee benefit plans. By its own terms, Section 4.03 permits either the Sellers' (defined in the agreement as Pacific Holding Corporation and Cannon Holding Corporation) adoption of a new pension plan or the purchase of annuity under guidelines set forth in a separate document known as Schedule 4.03. The option of purchasing an annuity was chosen and subparagraph (e) of Schedule 4.03 addresses that. Schedule 4.03 provides, in pertinent part:
Seller may, in its sole discretion, provide for the funding of all accrued benefits, including all ancillary benefits, whether or not vested, accrued through December 28, 1985, by causing the purchase of annuity contracts satisfactory to the Pension Benefit Guaranty Corporation.
Plaintiffs contend that the last phrase quoted above automatically makes Fieldcrest a fiduciary and vested it with discretionary authority over plan administration under ERISA's definition of fiduciary.
The plain language of the Stock Purchase Agreement, however, makes it clear that Schedule 4.03 was intended to modify Section 4.03 and that Schedule 4.03 was drafted to "set forth the rights and duties of the parties" regarding any annuities. (Tennyson Dep. at 19-20). There is no language in any of the agreements requiring Fieldcrest to approve any annuity contracts.
Further, there is testimony, in affidavit form, that Peter Tennyson, the primary legal representative and negotiator for David Murdock, did not intend for any of the provisions to require Fieldcrest to approve any annuity that might be selected. Id. at 32-33. Joe Ely, Fieldcrest's Chairman and a principle negotiator for the Cannon purchase, also stated that the Stock Purchase Agreement was not intended to require Fieldcrest's approval of any annuities. (Ely Dep. at 34-35). None of Fieldcrest's personnel responsible for pension matters were involved in drafting the Stock Purchase Agreement nor were they operating under the belief that Fieldcrest had any control over annuity selection. (Midgley Dep. at 21; Mitchell Dep. at 61; Raines Dep. at 15.) As well, testimony of the individuals involved in the negotiations indicates that annuities were never even discussed and that Fieldcrest wanted Cannon to take responsibility for any pension plan. (Murdock Dep. at 506; Tennyson Dep. at 18-19). There is, however, evidence that mention was made of terminating the Cannon *450 pension plan and that Ely expressed concern that Cannon Plan participants be treated fairly. (Murdock Dep. at 506; Tennyson Dep., at 24.) Such concern for the general fair treatment of Cannon employees cannot be said to rise to the level of assuming discretionary authority over the administration of the Cannon plan.
2. Fiduciary Duty Under § 1002(21)(A)(i)
Plaintiffs also contend that Fieldcrest owed them a duty as a fiduciary under 29 U.S.C. § 1002(21)(A)(i) in that Fieldcrest assumed discretionary authority and control regarding plan management and distribution of plan assets. Plaintiff's primary contention is that Fieldcrest participated in the selection of the annuity. Through depositions, Murdock and others involved in the stock sale have testified that Fieldcrest had nothing to do with the decision to purchase the annuities, the selection of Executive Life, or the termination of the Cannon plan. (Murdock Dep. at 524-25; Tatom Dep. at 50; Ely Dep. at 35.)
The only evidence that Fieldcrest participated in the selection of Executive Life is in plaintiff's unsworn answers to interrogatories where it is suggested that Fieldcrest was involved in placing Executive Life on the annuity bid list and promised to give Executive Life preferential treatment. The affidavit of Eric Watts, a principal in the firm whose function it was to market Executive Life's annuities, contradicts the suggestion of any special treatment offered by Fieldcrest. (Watts Aff. para. 9.) Watts' statements are corroborated by the deposition testimony of Steven Schwartz, an employee of First Annuity Corporation. (Schwartz Dep. at 165-66.)
The court is somewhat concerned with a meeting that took place on 19 June 1990 and was attended by representatives of Fieldcrest, Executive Life and Murdock. Plaintiffs assert that this meeting is evidence that Fieldcrest was involved in the selection of Executive Life. Defendants deposed six of the representatives in attendance at the meeting and none of them testified that the selection of Executive Life as an annuity carrier was discussed.[2] Instead, the meeting focused on administrative matters relating to the communication of information concerning benefits to be paid to Cannon employees. (Wilson Dep. at 15-25; Ellis Dep. at 7-12.) Defendants have also provided testimony of those not present at the 19 June meeting that Fieldcrest helped transmit data regarding benefits of individual Cannon employees and that the 19 June meeting was held in order to facilitate the transmission of such information. (Werner Dep. at 95, 107, 293; Tennyson Dep. at 35.)
Plaintiffs assert that the limited activity of transferring of information is enough to constitute the assumption of a fiduciary duty by Fieldcrest. However, the general rule is that an administrator who merely carries out ministerial duties or processes claims does not exercise discretionary powers and is not an ERISA fiduciary. See Kyle Rys., Inc. v. Pacific Admin. Servs., Inc., 990 F.2d 513 (9th Cir.1993); Pohl v. National Ben. Consultants, Inc., 956 F.2d 126 (7th Cir.1992). As long as the ultimate decision regarding the denial of claims or the eligibility for benefits rests with someone else, the administrator has no fiduciary duty. See Baker v. Big Star Div. of Grand Union Co., 893 F.2d 288 (11th Cir.1989).
Fieldcrest did assist Cannon in transmitting data concerning former Cannon employees and the amount of benefits owed them; however, there is no evidence that Fieldcrest's involvement went beyond the ministerial task of relaying data. There is no evidence that Fieldcrest ever made determinations of the eligibility of Cannon employees under the old Cannon Plan. Therefore, Fieldcrest did not assume any fiduciary duty with respect to the administration of the Plan.
3. Successor Liability
Plaintiff's Third Amended Complaint alleges that Fieldcrest is a successor to the liabilities of Cannon. As a legal principle, Fieldcrest may be held liable as a result *451 of its merger with Cannon; however, plaintiffs have failed to present to the court any evidence that Cannon was liable under ERISA. The only acts that could possibly form the basis of Cannon's liability, and thereby Fieldcrest's successor liability, are based on the 1979 amendment to the 1976 Cannon Plan. In order to establish Cannon's ERISA liability, plaintiffs must show that Cannon, as the employer at the time of the amendment, breached a fiduciary duty owed to plaintiffs. Employers do not owe plan participants a fiduciary duty when they make business decisions, but only when they take action in their capacity as plan administrators. Amato v. Western Union Int'l, Inc., 773 F.2d 1402 (2d Cir.1985), cert. dismissed, 474 U.S. 1113, 106 S. Ct. 1167, 89 L. Ed. 2d 288 (1986), overruled on other grounds by Mead Corp. v. Tilley, 490 U.S. 714, 109 S. Ct. 2156, 104 L. Ed. 2d 796 (1989). Many courts have held that an employer does not act as an ERISA fiduciary in deciding to amend or terminate a plan. See, e.g., Sutter v. BASF Corp., 964 F.2d 556 (6th Cir.1992); Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155 (3d Cir.1990). The actions of which plaintiffs complain were all taken by Cannon in the course of its normal business operation and, therefore, do not subject Cannon to ERISA liability.[3] Logically, therefore, Fieldcrest cannot be subject to successor liability for Cannon's actions.
Plaintiffs have failed to establish a genuine issue of material fact concerning Fieldcrest's responsibilities as a fiduciary under ERISA and the existence of successor liability. As concluded above, Fieldcrest did not assume any fiduciary duty under the meaning given that term in 29 U.S.C. § 1002(21)(A). Further, because Cannon was not liable under ERISA, Fieldcrest cannot be held liable as a successor. Therefore, defendant Fieldcrest is entitled to judgment as a matter of law on all claims against it and Fieldcrest's motion for summary judgment will be allowed.
B. Otto Stolz's Motion for Summary Judgment
Stolz is a former officer and director of Cannon who left the company in May 1982. Plaintiffs claim that Stolz: (1) breached his fiduciary duty under ERISA; (2) violated ERISA's "prohibited transaction" rule; (3) violated ERISA rules relating to the distribution of assets upon plan termination; and (4) violated ERISA rules prohibiting employers from firing or harassing employees to prevent those employees from claiming vested pension rights. The first and third allegations arise out of the 1979 Amendment to Cannon's retirement plan and will be discussed together. The second allegation will be fully discussed in the portion of this order relating to plaintiffs' claims against defendant Murdock, but will be briefly mentioned below. The fourth claim will be discussed independently below.
1. Breach of Fiduciary Duty
Plaintiffs claim that Stolz was involved in the breach of duties owed them with respect to the allegedly improper 1979 Amendment to the 1976 Plan, the promises made them in the Summary Plan Description (SPD), and in general through his activities as an officer and director of Cannon.
a. Fiduciary Duty Under the 1979 Amendment
Plaintiffs' breach of fiduciary duty claims against Stolz are based on allegations that the terms of the 1976 Plan prohibited the 1979 Amendment to the Plan. Specifically, plaintiffs claim that the 1979 Amendment permitting surplus assets to revert to the sponsor on termination was in violation of Articles 7 through 10 of the 1976 Plan. The provisions of each of these articles must be examined. Article 7 contains several sections relating to Plan contributions and payments. Section 7.2 requires Cannon to make sufficient contributions to pay benefits, but does not address the issue of who would receive any surplus assets. Section 7.3 requires all contributions to be paid into a trust fund unless expressly provided otherwise in the Plan. Section 7.5 states that plan participants have rights only to their benefits and does not give them any rights to any surplus upon termination. This section serves to protect participants' rights to their benefits *452 and cannot be interpreted to afford them any rights to any surplus.
Section 8.1 of Article 8 sets out the statutory fiduciary duties as articulated in § 404(a)(1) of ERISA and names the fiduciaries.[4] These duties are in no way implicated when a plan sponsor takes possession of surplus assets upon termination. See Wilson v. Bluefield Supply Co., 819 F.2d 457 (4th Cir. 1987). Section 8.3 discussed the Retirement Committee and establishes the administrative duties of this body. Article 9 deals only with contribution and requires all contributions to be paid to the trustee and kept in the trust fund. It also contains language limiting a participant's rights to the Trust Fund to the amount of benefits actually owed that individual. There is simply no language in Article 8 or 9 that would prevent amendment of the Plan to allow the sponsor to receive surplus assets upon termination.
Article 10 contains sections specifically dealing with procedures for amending the Plan. Section 10.1, entitled "Amendment," allows Cannon's Board of Directors to amend the Plan as long as the amendment does not divert assets "to purposes other than for the exclusive benefit of Participants, Eligible Spouses or Beneficiaries" or does not reduce the amount of benefits to which a beneficiary or participant was entitled prior to the effective date of the amendment. Article 10 contains no language prohibiting the 1979 Amendment.
The provision of the 1979 Amendment at issue is found in Section 11.05 of the 1979 Plan and is entitled "Termination Distribution." It is similar to the corresponding provision in the 1976 Plan in that it does not confer upon plan participants the right to any surplus assets upon termination; however, it differs in that § 11.05 specifies that any such surplus will be returned to the company. Plaintiffs have failed to present the court with any facts that the Plan was not amended in accordance with its own terms. The Fourth Circuit has held that abiding by the terms of a plan cannot be a breach of fiduciary duty. Dzinglski v. Weirton Steel Corp., 875 F.2d 1075 (4th Cir.), cert. denied, 493 U.S. 919, 110 S. Ct. 281, 107 L. Ed. 2d 261 (1989). This change does not have an adverse or prohibited effect on the rights guaranteed to the participants under either the 1976 or 1979 Plan. The 1976 Plan never gave the participants the right to any surplus, so the change in the 1979 Plan giving any such surplus to the company did not serve to take any benefits from the participants.
Plaintiffs contend that the 1976 Plan language, even if it does not specifically prohibit the company from recovering surplus assets, does prohibit such recovery because the Plan was intended to provide benefits for its participants. The Fourth Circuit has held that a plan sponsor may amend a plan to add provisions allowing the company to recover surplus assets even when unambiguous plan language requires all actions to be in the exclusive interest of the beneficiaries. Wilson, 819 F.2d at 460. Additionally, the 1976 Plan differs from the one at issue in Wilson in that the §§ 7.3, 7.5 and 9.2 make it clear that participants' rights are limited only to the amount of their accrued benefits and the Wilson Plan contained no such language. Plaintiffs' reliance on the "exclusive benefit" language in the 1976 Plan is misplaced in light of Fourth Circuit precedent and opinions from other circuits. See id.; Chait v. Bernstein, 835 F.2d 1017 (3rd Cir.1987) (rejecting prohibition of plan amendment based on "exclusive benefit" argument); Outzen v. FDIC ex rel. State Examiner of Banks, 948 F.2d 1184 (10th Cir.1991) ("exclusive benefit" language does not prohibit reversion of surplus assets to sponsor).
b. Fiduciary Duty under the SPD
Plaintiffs also claim that the 1979 amendment was improper in that it was contrary to representations made to them in the 1976 SPD indicating that assets would be distributed only for their benefit.[5] Provisions *453 contained in a SPD are not binding on an ERISA sponsor and cannot serve to amend a plan in any way. See Elmore v. Cone Mills Corp., 23 F.3d 855 (4th Cir.1994) (en banc) (promised benefits are incorporated in a plan only after formal amendment procedures followed). However, if a SPD contains language inconsistent with that of a plan and a participant detrimentally relies on the promises of the SPD, the courts have recognized a federal common-law cause of action. Aiken v. Policy Management Sys. Corp., 13 F.3d 138 (4th Cir.1993). In Aiken, plaintiff claimed the right to a distribution based on SPD statements and defendant alleged it had the right to withhold the payment until plaintiff reached a certain age. The court held that in order to recover, plaintiff had to show significant reliance upon or prejudice caused by the SPD. Id. at 141; see also Fuller v. FMC Corp., 4 F.3d 255 (4th Cir.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1062, 127 L. Ed. 2d 382 (1994) (participant may only receive benefits based on SPD if can show reliance on SPD language and prejudice); Gable v. Sweetheart Cup Co., 35 F.3d 851 (4th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1442, 131 L. Ed. 2d 321 (1995) (court will not infer detrimental reliance or prejudice without affirmative evidence).
Plaintiffs have failed to show the court any reliance upon the 1976 SPD. Plaintiff Johnsie Riley admitted that she read only parts of the SPD, cannot remember the details of the SPD, and did nothing differently as a result of reading it. (Johnsie Riley Dep. at 28, 133-34.) Her husband stated that he never read the booklet containing the 1976 SPD. (John Riley Dep. at 13.) Virginia Harrington testified that she real only "part" of the 1976 SPD (V. Harrington Dep. at 13), and her husband, Dewey Harrington said that he "didn't ever look at" the SPD. (D. Harrington Dep. at 21.) By their own admissions, plaintiffs have failed to prove reliance, an essential element of their claim based on the SPD language. Therefore, defendant Stolz's motion for summary judgment on this claim must be allowed. See EEOC v. Clay Printing Co., 955 F.2d 936 (4th Cir.1992) (affirming summary judgment where plaintiff failed to produce evidence, court relied on plaintiffs' admissions that they could not offer evidence to support element of claim).
c. Fiduciary Duty as a Director and Officer
Plaintiffs assert that Stolz was a fiduciary under ERISA, thereby owing a fiduciary duty to them, simply because he was an officer and director of Cannon. The Fourth Circuit has held that "fiduciary status is not an all-or-nothing concept." Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 61 (4th Cir.1992) cert. denied, ___ U.S. ___, 113 S. Ct. 1051, 122 L. Ed. 2d 359 (1993). The facts of this case, indicated that Stolz was a fiduciary for limited purposes, none of which are relevant to plaintiffs' claims.
The ERISA definition of fiduciary as set out in the discussion of defendant Fieldcrest's motion applies equally to defendant Stolz. See 29 U.S.C. § 1002(21)(A). The Fourth Circuit has said that plan documents are the place to look in order to determine the discretionary authority and responsibility given to board members. Coleman, 969 F.2d at 61. The Court of Appeals continued to explain that one should also look "beyond the formalities to see if [the alleged fiduciary] in fact exercised authority" such that he was acting as a fiduciary. Id. Looking first to the Plan's language, the only duty given to the board was that of appointing members of the Retirement Committee. Stolz has stated that his involvement with respect to the Plan was limited to voting for Retirement Committee members and there has been no evidence suggesting otherwise. Stolz was never on the Retirement Committee himself and there are no facts indicating that he exercised any authority or control respecting the management or disposition of the Plan, nor was he ever involved in the administration of the Plan.
Plaintiffs' contention that Stolz assumed an expanded fiduciary role simply due to his status as an officer and director is without merit. As the Fourth Circuit stated, the extent of a fiduciary's role is to be gleaned from plan-related documents. Id. The Third Circuit has specifically held that one's position within a company does not create a fiduciary duty. See Confer v. Custom Eng. *454 Co., 952 F.2d 41 (3rd Cir.1991). This position is also supported by commentary found in the Code of Federal Regulations where it states that members of the board of directors and those holding office in a company are fiduciaries only to the extent that they have responsibility for the acts described in the statute. 29 C.F.R. § 2509.75-8 (D-4, D-5) (1994).
Stolz, admittedly, was a fiduciary for the limited purpose of selecting members of the Retirement Committee. However, there is no evidence that he breached this duty. Stolz's motion with respect to the breach of fiduciary duty claim will be allowed.
2. Conspiracy Claim Against Stolz
Plaintiffs claim that Stolz and other Cannon directors conspired to breach fiduciary duties under ERISA. The Supreme Court has described ERISA as a "comprehensive and reticulated statute," Nachman Corp. v. Pension Ben. Guar. Corp., 446 U.S. 359, 100 S. Ct. 1723, 64 L. Ed. 2d 354 (1980), and nowhere does it provide for a conspiracy cause of action. In a recent case, the Court cast doubt on the availability of a conspiracy claim under ERISA. See Mertens v. Hewitt Assocs., ___ U.S. ___, 113 S. Ct. 2063, 124 L. Ed. 2d 161 (1993). In that case, the court rejected a claim against an actuarial firm that allegedly aided and abetted a breach of fiduciary duty stating that it was unwilling "to infer causes of action in the ERISA context, since that statute's carefully and detailed enforcement scheme provides `strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.'" Id., ___ U.S. at ___, 113 S.Ct. at 2067 (citing Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146-47, 105 S. Ct. 3085, 3092-93, 87 L. Ed. 2d 96 (1985)) (emphasis in original).
Applying the reasoning of Mertens, plaintiffs cannot make a claim for conspiracy under ERISA. The statute does not prohibit anyone from "conspiring" with a fiduciary for any purpose, just as it does not prohibit "aiding and abetting" the breach of a duty. See Reich v. Rowe, 20 F.3d 25 (1st Cir.1994) (no cause of action against nonfiduciary who knowingly participated in breach of ERISA fiduciary).
Even if the court were to infer a conspiracy cause of action within ERISA, plaintiffs have failed to establish facts to support a conspiracy. To state a claim for conspiracy a plaintiff must establish: (1) an agreement between two or more people to participate in an unlawful act or a lawful act in an unlawful manner; (2) an unlawful overt act by a party to the agreement that is in furtherance of the agreement; and, (3) damages. Davenport v. North Carolina Dept. of Transportation, 3 F.3d 89 (4th Cir.1993). When asked to provide factual data supporting the existence of a conspiracy, plaintiffs responded with conclusory responses that showed nothing. Stolz, however, has stated that as of the time of the 1979 Amendment, he had never heard of Murdock and had never discussed the retirement plan. (Stolz Aff. para. 8, 9.) As well, it is undisputed that Stolz left Cannon in May 1982 and was not involved in or aware of the decision to terminate the Plan or to select Executive Life as an annuity provider. The law is clear that mere allegations of a conspiracy do not establish a claim and are insufficient to overcome a motion for summary judgment based on testimony evidencing a lack of participation. Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001 (4th Cir.), cert. denied, 484 U.S. 897, 108 S. Ct. 232, 98 L. Ed. 2d 191 (1987) (quoting Buschi v. Kirven, 775 F.2d 1240 (4th Cir.1985)). Defendant Stolz's motion for summary judgment on the conspiracy claim will be allowed.
3. Interference With Employment Relationship Claim
Plaintiff's final claim against Stoltz is that his actions relating to the amendment of the Plan violated § 510 of ERISA which prohibits the firing or harassing employees to prevent them from claiming vested pension rights. Section 510 is relevant in situations where there is an allegation that "an employer-employee relationship, and not merely the pension plan, was changed in some discriminatory or wrongful way." Deeming v. American Standard, Inc., 905 F.2d 1124, 1127 (7th Cir.1990). Plaintiffs *455 have not offered the court any evidence that Stolz interfered with the employer-employee relationship between Cannon and Plan participants, or that any of his actions resulted in a change in this relationship. Section 510 has been interpreted as a safeguard of the employment relationship that gives rise to an employee's individual rights. See West v. Butler, 621 F.2d 240 (6th Cir.1980); Gavalik v. Continental Can Co., 812 F.2d 834 (3d Cir.), cert. denied, 484 U.S. 979, 108 S. Ct. 495, 98 L. Ed. 2d 492 (1987). As a matter of law, this section does not apply to the facts established in this case and Stolz's motion with respect to this claim will be allowed.
C. The Directors' Motion for Summary Judgment
Plaintiffs' claims against the Directors are very similar to those made against Stolz and much of the discussion concerning Stolz's motion for summary judgment applies equally to the motion of the Directors. Specifically, plaintiffs' claim that the Directors were fiduciaries merely because of the position they held is without merit for the reasons discussed in reference to the same claim made against Stolz. Plaintiffs have failed to provide the court with any evidence that any of the Directors exercised any discretionary control or authority over the administration of the Plan such that their roles as Directors extended into that of fiduciary. As was Stolz, the Directors were fiduciaries for the limited purpose of electing members of the Retirement Committee,[6] and plaintiffs have not shown that the Directors took any action in breach of this duty.
Plaintiffs further contend that the Directors' power to amend or terminate the Plan made them fiduciaries. The Fourth Circuit, however, has held that the ability to alter or terminate a plan is not to be reviewed by fiduciary standards. Sutton v. Weirton Steel Div. of Nat'l Steel Corp., 724 F.2d 406, 411 (4th Cir.1983), cert. denied, 467 U.S. 1205, 104 S. Ct. 2387, 81 L. Ed. 2d 345 (1984). Several other circuits are in agreement. See, e.g., Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155 (3d Cir.1990); Musto v. American Gen. Corp., 861 F.2d 897 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S. Ct. 1745, 104 L. Ed. 2d 182 (1989); Young v. Standard Oil (Indiana), 849 F.2d 1039 (7th Cir.1988); cert. denied, 488 U.S. 981, 109 S. Ct. 529, 102 L. Ed. 2d 561 (1988); Anderson v. John Morrell & Co., 830 F.2d 872 (8th Cir.1987); Cunha v. Ward Foods, Inc., 804 F.2d 1418 (9th Cir.1986). Also, the Ninth Circuit has already reviewed the Plan at issue in this case in Amalgamated Clothing & Textile Workers Union, AFL-CIO v. Murdock, 861 F.2d 1406 (9th Cir.1988) (ACTWU), and the amendment, termination and reversion of surplus assets were all determined to be in compliance with ERISA. Thus, in following the terms of the Plan, the Directors were not in violation of ERISA, and the Directors' motion for summary judgment as to the breach of fiduciary duty claims will be allowed.
The discussion in the section of this Order resolving Stolz's motion for summary judgment on plaintiffs' allegations that the 1979 Amendment to the 1976 Plan was a breach of fiduciary duty and the Plan itself is fully relevant to the same claims made against the Directors. For the reasons stated above, the court is of the opinion that the amendment was not in violation of ERISA or its own terms. Additionally, the court's reasoning relating to plaintiffs' claims that the SPD gave them additional rights and created fiduciary duties owed them by Stolz also applies to the same claims against the Directors.
Plaintiffs allege that the Directors were part of a conspiracy to deprive them of benefits and also violated § 510 of ERISA. For the reasons articulated in the discussion of the similar claims as they relate to Stolz, the Directors' motion for summary judgment will be allowed with respect to the conspiracy and interference with the employment relationship claims.
Because Director George A. Batte, Jr. (Batte) was also a member of the Retirement Committee, the claims against him warrant independent discussion. The minutes of the 30 April 1979 Retirement Committee *456 meeting reveal that Batte was on the Committee.[7] No other records indicate his committee service prior to that date. Batte left Cannon in 1982. The dates are important to note because plaintiffs' allegations of any wrongdoing relating to the Retirement Committee stem from committee actions taken after Batte left Cannon. While Batte may have had additional fiduciary duties during the time he served on the Retirement Committee, plaintiffs have failed to allege or prove that he took any action in violation of such duties.
D. Murdock's Motion for Summary Judgment
Plaintiffs' claim against Murdock are similar to those lodged against the other defendants and include breach of fiduciary duty in amending the Plan, in terminating the Plan, in selecting Executive Life as the annuity carrier and claiming the surplus assets; conspiracy; prohibited transactions under ERISA and interference with the employer-employee relationship. Although the claims are similar, some facts apply to Murdock's involvement with the Plan that were not relevant to other defendants and a brief recitation of them will facilitate discussion.
Murdock first bought stock in Cannon in 1980 and acquired a controlling interest in March 1982. At that time he became Chief Executive Officer and served in that capacity until January 1986. During these years he was also the sole shareholder of Cannon Holding Corporation (CHC), Cannon's parent company.
In November 1985 Fieldcrest expressed interest in acquiring Cannon and the sale was completed on 30 January 1986. Fieldcrest has made it clear from the beginning that it had no desire to purchase Cannon's retirement plan and the Plan was not part of the sale. As a result, the decision was made to terminate the Plan. To facilitate termination, the Plan was amended with the changing of the sponsor from Cannon to CHC, which Murdock would still control after the sale. The Plan was also amended to provide for the reversion of all surplus assets to the sponsor.
As Plan sponsor, CHC, through Murdock, was responsible for distribution of Plan assets. CHC formed a Retirement Committee (the Committee) to oversee asset distribution. The Committee members were Michael Werner, James Tatom, Michael Halpern and Raymond Henze. They, with the assistance of the law firm of O'Melveny and Myers and the actuarial firm of Hewitt and Associates, had the responsibility of assuring that all participants would receive full benefits. After several rounds of bidding and financial stability reviews, Executive Life was chosen as the annuity carrier. Executive Life administered the annuity without incident until it was placed in conservatorship in 1991. Plaintiffs have testified that they have received all benefits owed them by the Plan. (Johnsie Riley Dep. at 54; John Riley Dep. at 35-36; V. Harrington Dep. at 50-51; D. Harrington Dept. at 28-29.)
1. Res Judicata
Murdock was a named defendant in ACTWU, a case filed by the Union and individual former Cannon employees and Plan participants. The complaint sought relief for all Plan participants and alleges breach of fiduciary duty in management, amendment and termination of the Plan. Defendant Murdock alleges that disposition of ACTWU operates to invoke the doctrine of res judicata and bar plaintiffs' claims against him.[8]
*457 For res judicata to apply, three elements must be proven: "(1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of the parties or their privies in the two suits." Keith v. Aldridge, 900 F.2d 736, 739 (4th Cir.), cert. denied, 498 U.S. 900, 111 S. Ct. 257, 112 L. Ed. 2d 215 (1990) (quoting Nash County Board of Education v. Biltmore Co., 640 F.2d 484, 486 (4th Cir.1981)). Addressing the first element, Murdock is correct in his assertion that the settlement and voluntary dismissal of ACTWU on remand from the Ninth Circuit was a final judgment on the merits for the purposes of the first element of res judicata. See id., 900 F.2d at 740.
Turning to the second element, the causes of action in ACTWU and the instant case are not identical. Where the elements of claims differ, there are two causes of action and litigation of one will not preclude litigation of the other. United States v. Tatum, 943 F.2d 370, 381 (4th Cir.1991). This court has previously held that ACTWU involved claims which related to facts that did not take place at the same time as those involved in the case at bar. Riley v. Murdock, 828 F. Supp. 1215, 1222-23 (E.D.N.C. 1993). Specifically, the ACTWU plaintiffs did not file claims relating to the surplus prior to 1979, the 1979 Plan amendment, the language of the 1976 and 1979 SPD's, allegedly prohibited transactions under ERISA, the selection of Executive Life, or the allocation of surplus assets at termination.
Examining the third and final element of res judicata requires looking at the identity of the parties and their privies in both suits. Murdock admits, and the plaintiffs have stated, that they were not plaintiffs in ACTWU and were not members of the union that filed that suit. Therefore, the focus shifts to the relationship between the ACTWU plaintiffs and those here. This court held, in its previous order, that the plaintiffs in the instant case "are not so closely aligned with plaintiffs in ACTWU as to justify precluding this litigation." Id., 828 F.Supp. at 1223. Relying on this earlier decision, the court finds that there is no privity between the two groups of plaintiffs so as to satisfy the third element of res judicata. Because only one of the three necessary elements of res judicata are present in this case, that doctrine will not apply to bar this action against Murdock and the discussion will proceed to the merits.
2. Breach of Fiduciary Duty
Plaintiffs have alleged that Murdock breached the fiduciary duties owed by the role he played in several events. Each event will be examined separately.
a. Purchase of the Executive Life Annuity
The heart of plaintiffs' allegations against Murdock are that the purchase of the group annuity contract from Executive Life in 1986 constituted a breach of fiduciary duty. Murdock was a fiduciary under ERISA, and the duties of a fiduciary are established in 29 U.S.C. § 1104, which provides, in pertinent part:
A fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and
(A) for the exclusive purpose of:
(i) providing benefits to participate and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; ...[9] [and]
(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.
Plaintiffs claim Murdock violated the "exclusive purpose" requirement, the "prudence" requirement, and the "in accordance with the plan" requirement. Each requirement will be examined in turn.
*458 Courts have articulated two way in which to measure a fiduciary's use of prudence in carrying out their duties. The first is whether the fiduciary employed the appropriate methods to diligently investigate the transaction and the second is whether the decision ultimately made was reasonable based on the information resulting from the investigation. See Schaefer v. Arkansas Medical Soc., 853 F.2d 1487 (8th Cir.1988); Donovan v. Mazzola, 716 F.2d 1226 (9th Cir.1983), cert. denied, 464 U.S. 1040, 104 S. Ct. 704, 79 L. Ed. 2d 169 (1984); Bidwell v. Garvey, 743 F. Supp. 393 (D.Md.1990).
In determining if the appropriate investigation was conducted, courts often focus on whether the fiduciary obtained assistance from experts. See Donovan v. Cunningham, 716 F.2d 1455, 1474 (5th Cir.1983), cert. denied, 467 U.S. 1251, 104 S. Ct. 3533, 82 L. Ed. 2d 839 (1984) ("ERISA fiduciaries need not become experts ... [as] they are entitled to rely on the expertise of others.") From this point, the court's inquiry shifts to whether the fiduciary's decision was reasonable at the time it was made in light of the results of the investigation. This test is not one of hindsight and facts taking place after the decision was made will not render a decision imprudent. In a case out of the Eleventh Circuit where the fiduciaries' decision to develop plan-owned property turned out to be a bad one, the court made it clear that it had the duty to inquire whether the fiduciaries "at the time they engaged in the challenged transaction, employed the appropriate methods to investigate and/or structure the investment." Donovan v. Walton, 609 F. Supp. 1221, 1228 (S.D.Fla.1985), aff'd sub nom., Brock v. Walton, 794 F.2d 586 (11th Cir. 1986).
Applying these measures of prudence to Murdock's decision to purchase the Executive Life annuity, it is clear that the decision was well-investigated and reasonable at the time it was made. It is undisputed that as soon as termination of the Plan was decided upon, a committee of experienced financial managers was formed and charged with the responsibility of evaluating potential carriers and selecting the one they felt to be the best. This committee, as explained elsewhere in this Order, retained Hewitt Associates, a leading employee benefits consulting firm, and began going through a list of the top-rated insurance companies. (Werner Dep. at 140.) The committee also retained a law firm and conducted its own investigation of each insurance company that bid on the annuity contract. This investigation included: (1) a financial analysis; (2) personal contact with the companies' senior management; (3) a review of financial statements, quarterly reports and other relevant financial documents (Werner Dep. at 102-03, 160; Tatum Dep. at 41, 47); (4) consultation with Conning & Company, a firm specializing in the evaluation of insurance companies (Werner Dep. at 150-51); (5) consulting with independent sources about Executive Life; and, (6) consulting with other companies that had bought annuity contracts from Executive Life. The committee also relied on the fact that Executive Life had received a high rating in 1986 from A.M. Best, the preeminent authority rating insurance companies. (Thrower Dep. at 26, 44-45, 65, Ex. 21.) The committee also knew that Executive Life received a AAA rating from Standard & Poor's, the highest rating that company gives, and the stock of its parent company was also highly rated. (Id. Ex. 69.) The committee also made certain that Executive Life had the administrative capabilities to oversee disbursement of Plan funds. (Werner Dep. at 175-77).
All of these efforts establish that Murdock and his committee thoroughly investigated the purchase of the annuity from Executive Life and that the decision to purchase was reasonable based on the results of that investigation. Plaintiffs rely on the assertions of their expert that Murdock should have known in 1986 that there were problems at Executive Life which would lead to its receivership in 1991. (Babbel Dep. at 73, 75.) However, the mere conclusory opinion of an expert, when not supported by evidence, will not defeat summary judgment. Tyger Constr. Co., Inc. v. Pensacola Construction Co., 29 F.3d 137 (4th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 729, 130 L. Ed. 2d 633 (1995); Eastern Auto Distribs., Inc. v. Peugeot Motors of Am., 795 F.2d 329 (4th Cir.1986). Plaintiffs have not offered *459 any evidence to support the opinion that Murdock and the committee should have known of any problems at Executive Life in 1986. Therefore, the purchase of the Executive Life annuity was prudent.
Plaintiffs claim that Murdock violated another requirement imposed upon an ERISA fiduciary in that he did not follow what is known as the "exclusive purpose" clause. Examining the "exclusive purpose" requirement under ERISA's outline of fiduciary duties, it is clear that the statute imposes a loyalty to plan participants and beneficiaries. However, the legislative history of the statute suggests that Congress intended a fiduciary to be able to meet the "exclusive purpose" requirement by satisfying the prudence requirement. H.R.Conf.Rep. No. 1280, 93rd Cong., 2nd Sess. 1974, reprinted in 1974 U.S.C.C.A.N. 4639, 5038, 5083. Additionally, courts have held that a fiduciaries' decision based on the advice of retained experts did not violate the duty of loyalty. See Donovan v. Bierwirth, 680 F.2d 263 (2d Cir.), cert. denied, 459 U.S. 1069, 103 S. Ct. 488, 74 L. Ed. 2d 631 (1982). Murdock acted for the exclusive purpose of Plan participants and beneficiaries when he prudently selected to purchase the annuity from Executive Life.
The third requirement mandates that a fiduciary administer a plan in accordance with plan documents, unless doing so would violate ERISA. Section 1408 of the Plan, as amended, allocated administrative responsibilities to the Sponsoring Committee, the Retirement Committee, the Trustee, and the Investment Committee. Murdock was not a member of any of these committees, was not the Trustee, and there are no facts to suggest that he participated in Plan administration. However, even if it were determined that he participated in Plan administration, he would not be liable because of such participation because the Plan was administered in accordance with its terms. The Plan in effect when Murdock took control provided for the reversion of surplus assets to the Plan sponsor upon termination. (1979 Plan § 11.05.) The Committee had to transfer the surplus assets to Murdock when the Plan was terminated in 1986 or else be liable for an ERISA violation. Thus, Murdock cannot be held liable on this basis.
b. The 1985 Plan Amendment and Termination
In 1985, the Plan was amended to change the name of the sponsor from Cannon to CHC. The amendment also eliminated the phrase "due to erroneous actuarial computation" in reference to the reversion of surplus assets. Several courts have considered this phrase to be boilerplate language and have held that it does not require that surplus assets be the result of an identifiable mistake, but allows any assets remaining after all plan liabilities are satisfied to labeled the result of actuarial error. Blessitt v. Retirement Plan for Employees of Dixie Engine Co., 848 F.2d 1164 (11th Cir.1988); Int'l Union, United Auto., Aerospace and Agric. Implement Workers of America v. Dyneer Corp., 747 F.2d 335 (6th Cir.1984); See Rev. Rul. 83-52, 1983-13 C.B. 87. Thus, the elimination of the phrase concerning actuarial computation was not a material change and had no effect on the benefits owed plaintiffs. The change of the sponsor was also an incidental change with no effect on the participants or beneficiaries. Neither of these amendments form the basis of a breach of fiduciary duty claim.
Plaintiffs contend that the termination of the Plan was a breach of fiduciary duty; yet, several circuits have held that termination of plans are not evaluated under fiduciary standards. Hozier, 908 F.2d at 1155; Musto v. Am. General Corp., 861 F.2d 897 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S. Ct. 1745, 104 L. Ed. 2d 182 (1989). In fact, the Ninth Circuit has made this determination about the very plan at issue in this case. ACTWU, 861 F.2d at 1419. The Fourth Circuit has not decided a case involving the application of fiduciary standards to termination of a plan, but it has heard a case involving fiduciary standards, renegotiation and amendment of a plan. In Sutton v. Weirton Steel Div. of Nat'l Steel Corp., 724 F.2d 406, 411 (4th Cir.1983), cert. denied, 467 U.S. 1205, 104 S. Ct. 2387, 81 L. Ed. 2d 345 (1984), the court stated that Congress did not prohibit "an employer who is a fiduciary from *460 exercising the right accorded other employers to renegotiate or amend [plan terms].... The changes, accomplished in this manner, are not to be reviewed by fiduciary standards." Termination of a plan is similar to the changes in Sutton and, therefore, the decision to terminate should not be evaluated under fiduciary standards. Because the decision to terminate is not evaluated under fiduciary standards, there can be no claim of breach of fiduciary duty with respect to that action.
c. Allocation of Surplus Assets
Plaintiffs claim that Murdock and the other defendants[10] violated 29 U.S.C. § 1344 and breached their fiduciary duties by turning over the surplus assets of the Plan to Murdock. Title 29 U.S.C. § 1104, discussed in detail above, outlines fiduciary duties and specifically references § 1344, which deals with plan termination. Section 1104 allows plan assets to "inure to the benefit of" the employer, as provided in § 1344. By definition, any allocation of plan assets which complies with § 1344 cannot be a breach of fiduciary duty. The only issue then is whether payment of the surplus to Murdock was in compliance with § 1344.
Section 1344(d)(1) allows for the reversion of surplus assets to the employer, if a plan so provides. There is no dispute that the Plan provides such a reversion and plaintiffs have failed to present any evidence that any defendant did not distribute the Plan assets in compliance with the statute and the Plan. In fact, the only evidence relating to the disbursement of assets indicates that everything was done properly. Application was made to the Pension Benefits Guaranty Corporation (PBGC)[11] for a Notice of Sufficiency regarding the termination of the Plan. PBGC then questioned Hewitt, the actuarial firm calculating asset distribution, about the allocation of assets between the sponsor and the participants. The allocation was done in compliance with PBGC regulations and all eligible Plan members received a pro rata share of the surplus, with the remainder going to the sponsor. See 29 C.F.R. §§ 2618.30, 2618.31. Ultimately, the PBGC issued a Notice of Sufficiency, signifying its approval of the asset allocation. The only evidence plaintiffs offered to counter these facts is the statement of an expert confirming that the method used to calculate the allocation is the "preferred" method. The surplus assets were not distributed in violation of § 1344 and the distribution was not a breach of fiduciary duty. Defendants' motions relating to this claim will be allowed.
3. Conspiracy to Violate ERISA
Plaintiffs contend that Murdock conspired with the Cannon Board of Directors to pass the 1979 Amendment allowing any surplus assets to revert to the Plan sponsor. All facts indicate, however, that Murdock had no contact with Cannon prior to 1980 and did not have a controlling interest until March 1982. In fact, individuals who were either officers or directors of Cannon during 1979 have sworn that they never spoke with Murdock or his associates prior to February 1980. (Adams Dep. at 65-66; Stoltz Dep. at 24-25.) Murdock himself has stated that he was not part of any such conspiracy and was attracted to Cannon because of its vast real estate holdings and knew little, if anything, about its retirement trust. (Murdock Dep. at 34.) Plaintiffs have failed to produce any facts in support of Murdock's involvement with the 1979 Amendment. Further, as stated above in relation to plaintiffs' claims against several other defendants, the Supreme Court has cast serious doubt on the existence of a conspiracy cause of action under ERISA. Mertens, ___ U.S. at ___, 113 S.Ct. at 2063 (1993). For these reasons, Murdock's motion for summary judgment on any conspiracy claim will be allowed.
*461 4. Prohibited Transaction Claim
Plaintiffs make this claim against several defendants, including Murdock, and it is discussed here because the factual basis of the claim is that the purchase of the Executive Life annuity, which took place under Murdock's leadership, was a violation of 29 U.S.C. § 1106. That statutes prohibits fiduciaries from taking part in certain specified transactions involving assets of a plan and the Fourth Circuit has written that "Congress enacted a prohibited transaction rule to prevent persons with a close relationship to a plan from using that relationship to the detriment of the plan beneficiaries." Wood v. Commissioner, 955 F.2d 908, 910 (4th Cir. 1992). Examining the language of § 1106, it is clear that a prohibited transaction must involve a plan and a "party in interest." Under plaintiffs' scenario, the only entity involved, other than the Plan itself, is Executive Life. Executive Life cannot be said to be a party in interest, as it had no interest in the Plan prior to it being awarded the annuity contract. In a case similar to the one at bar, the Ninth Circuit held that the purchase of a group annuity as a part of plan termination was not the type of transaction intended to be prohibited by this statute. Waller v. Blue Cross of California, 32 F.3d 1337 (9th Cir.1994). Defendants' motion on this claim will be allowed.
5. Interference With Employment Relations Claim
This claim was also made against other defendants and is completely discussed in relation to defendant Stolz. That discussion applies equally to defendant Murdock, as plaintiffs have failed to present any evidence that their employment relationship was changed in any way due to his actions. Murdock's motion with respect to this claim will be allowed.
III. CONCLUSION
For the reasons herein stated, the motions for summary judgment filed by Fieldcrest, Stolz, the Directors, and Murdock are ALLOWED and this matter is DISMISSED. Plaintiffs' motion for class certification is hereby rendered MOOT.
NOTES
[1] The original complaint also contained pendent state law claims for common law fraud and conspiracy which were dismissed by this court in its 30 July 1993 Order. 828 F. Supp. 1215.
[2] Jim Tatom, Alex Yielding, Steven Schwartz, Charles Wilson, Raven Ellis and Nancy Bateman were the attendees of the meeting that were deposed.
[3] This matter is more fully discussed with regard to Otto G. Stolz's motion for summary judgment.
[4] Stolz is not named as a fiduciary.
[5] Stolz maintains that he had no involvement at all in the preparation of the 1976 SPD, as it was prepared and distributed before he went to work at Cannon. (Stolz Aff. para. 5.) However, in an effort to fully address plaintiffs' allegations, the claims against Stolz as they relate to the SPD will be fully discussed.
[6] Director Batte was a member of the Retirement Committee and plaintiffs' claims against him in that capacity will be addressed elsewhere in this Order.
[7] Batte has no independent recollection of serving on the Retirement Committee; however, he did not deny that he could have served on the Committee at some point in time.
[8] Defendant Fieldcrest was also involved in the ACTWU suit and argued res judicata and collateral estoppel as grounds for dismissal at the pleading stage of the instant action. In its Order of 30 July 1993, the court concluded that the issues raised in ACTWU and those presented in this action, as they relate to Fieldcrest, were not identical. Relying on the "issue preclusion" analysis of Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332 (4th Cir.1992), the court held that collateral estoppel did not apply. The res judicata argument now raised by Murdock focuses on the similarity of the claims and parties rather than the issues and is a separate and distinct argument from that rejected in the earliest Order.
[9] Part C of this statute requiring diversification is not at issue in the instant case.
[10] This claim is made against all defendants, but is discussed in reference to Murdock's motion because the claim centers around the theory that the payment of the surplus assets to him was the violation. This discussion should apply to the motions of the other defendants as well.
[11] The PBGC is the federal agency responsible for regulating and overseeing qualified pension plans. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1972169/ | 540 Pa. 460 (1995)
658 A.2d 755
COMMONWEALTH of Pennsylvania, Appellee,
v.
Mark BRACALIELLY, Appellant.
COMMONWEALTH of Pennsylvania, Appellee,
v.
Raymond STARR, Appellant.
Supreme Court of Pennsylvania.
Argued and submitted September 21, 1994.
Decided May 16, 1995.
Reconsideration Denied July 19, 1995.
*463 Paul D. Boas, Mark D. Lancaster, Berlin, Boas & Isaacson, Pittsburgh, for appellant in No. 74.
Lynn Erickson, Leesport, for appellant in No. 13.
David M. McGlaughlin, Newman & McGlaughlin, Philadelphia, for amicus curiae Pennsylvania Ass'n of Crim. Defense Lawyers in No. 13.
Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal A. Mericli, Kevin F. McCarthy, Asst. Dist. Atty., for appellee in No. 74.
Claude A. Lord Shields, Dist. Atty., Jacqueline L. Russell, Asst. Dist. Atty., for appellee in No. 13.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.
MONTEMURO, Justice.
This consolidated appeal requires us to determine whether we should bar the instant prosecutions. Appellants contend that because these prosecutions arise from conduct which forms part of the same criminal episode on which previous prosecutions were based, 18 Pa.C.S. § 110 requires their dismissal. The Commonwealth argues that the instant prosecutions are not based on conduct constituting the same criminal episode as the previous prosecutions and therefore do not violate 18 Pa.C.S. § 110. Because the inquiry as to whether a series of criminal acts constitutes a single criminal episode is fact dependent, we first review the factual history of each case.
Commonwealth v. Bracalielly
This case involves various drug related offenses which occurred over the period from August 7 to August 20, 1990. During this period, Mark Bracalielly ("Bracalielly") allegedly participated in four transactions involving controlled substances. Two of these transactions occurred in Allegheny County and two occurred in Butler County. Furthermore, on August 20, 1990, the police obtained a warrant, and, upon *464 searching Bracalielly's Allegheny County residence, discovered various controlled substances and drug paraphernalia.
On August 4, 1990, Detective Byers, a member of the North Hills Drug Task Force, was contacted by Michael Deardon, a confidential informant who had been reliable in the past, concerning the possibility of investigating Bracalielly. At this time, Bracalielly resided at 213 Henderson Street in the North Side area of Pittsburgh. Deardon had arranged to buy one eighth of an ounce of cocaine from Bracalielly at the McKnight Seibert Shopping Center in Ross Township. Affidavit For Criminal Complaint of Dets. Byers & Herb, 9/20/90 (violation date 8/7/90).
August 7, 1990 Allegheny County
On August 7, 1990, Deardon met with Bracalielly at Maggie Mae's in the McKnight Seibert Shopping Center. Several detectives maintained surveillance inside and outside the restaurant. Deardon and Bracalielly exited the restaurant and proceeded to a grey Chevrolet Cavalier, where Deardon purchased 3.32 grams of cocaine from Bracalielly for $250. Id. Deardon then made arrangements to purchase one ounce of cocaine in the near future. Id.
Based on this transaction, the Commonwealth charged Bracalielly with one count each of possession of a controlled substance,[1] possession with intent to deliver a controlled substance,[2] delivery of a controlled substance,[3] and criminal conspiracy.[4] Allegheny County Criminal Action No. 9016136.
August 11, 1990 Butler County[5]
Butler County authorities began an independent investigation of Bracalielly, using the same informant. During the next *465 four days, Deardon contacted Bracalielly constantly to arrange another transaction. (N.T. 8/29/91 at 15). On August 11, Bracalielly met Deardon in Allegheny County and they traveled to the Cranberry Mall in Cranberry Township (Butler County) where Bracalielly sold additional drugs to Deardon in the parking lot in the presence of a Cranberry Township law enforcement officer. (N.T. 8/29/91 at 7-8). See also (N.T. 6/12/91 at 13-18) (attached as Exhibit B to Defendant's Memorandum in Support of Motion to Quash); (N.T. 8/29/91 at 7-8). Butler County authorities subsequently charged Bracalielly with possession of a controlled substance,[6] delivery of a controlled substance,[7] and conspiracy.[8] Butler County Criminal Action No. A1054 of 1990.
August 17, 1990 Allegheny County
On August 16, 1190, Deardon once again contacted Bracalielly at his home in Allegheny County. This time arrangements were made for Deardon to purchase one ounce of cocaine for $1,550. Affidavit For Criminal Complaint of Dets. Byers & Herb, 9/20/90 (violation date 8/17/90). The transaction occurred in the early morning hours of August 17, 1990, in Ross Township, Allegheny County. Id. Detective Byers accompanied Deardon while other officers maintained surveillance. Id. After the transaction, Deardon surrendered the cocaine to Detective Byers. Lab tests subsequently revealed the presence of 28.55 grams of cocaine. Id.
The Commonwealth once again charged Bracalielly with one count each of possession of a controlled substance,[9] possession with intent to deliver a controlled substance,[10] delivery of a *466 controlled substance,[11] and criminal conspiracy.[12] Allegheny County Criminal Action No. 9016135.
August 20, 1990 Butler County
On August 20, 1990, Deardon again contacted Bracalielly at his Allegheny County home to set up a "reverse sting."[13] (N.T. 8/29/91 at 10). Bracalielly met Deardon in Allegheny County and drove him to the Cranberry Mall in Butler County. Id. at 19. At the Cranberry Mall, Bracalielly was arrested after attempting to purchase one quarter pound of cocaine for $4,000 from Detective Evanson of the Cranberry Township Police. Bureau of Narcotics Investigations and Drug Control Memorandum Report, attached as Exhibit J to Defendant's Memorandum in Support of Motion to Quash. The Commonwealth charged Bracalielly with possession of a controlled substance,[14] possession with intent to deliver a controlled substance,[15] criminal conspiracy,[16] possession of an instrument of a crime,[17] and possession of an offensive weapon.[18] Butler County Criminal Action No. B1055 of 1990, attached as Exhibit E to Defendant's Memorandum in Support of Motion to Quash.
August 20, 1990 Allegheny County
After his arrest, Bracalielly provided statements divulging the presence of thirty-two grams of cocaine and a quantity of L.S.D. at his Allegheny County home. Affidavit of Barbara Roberts, attached as Exhibit G to Defendant's Memorandum in Support of Motion to Quash. Based on this information and corroborating statements by Deardon, a search warrant was *467 issued for 213 Henderson Street in Pittsburgh. Authorities discovered 31.1 grams of cocaine, 197 dosage units of L.S.D., 0.8 grams of marijuana, and various drug paraphernalia. Affidavit of Barbara A. Roberts in Support of CC 9100984 (11/19/90). Bracalielly was charged in Allegheny County with two counts of possession of a controlled substance,[19] two counts of possession with intent to deliver a controlled substance,[20] and one count each of criminal conspiracy,[21] possession or distribution of a small amount of a controlled substance,[22] and possession of drug paraphernalia.[23] Allegheny County Criminal Action No. 9100984.
Procedural History
Bracalielly was charged in Butler County for the crimes that occurred there on August 11, 1990, and August 20, 1990. On June 13, 1991, Bracalielly entered pleas to the charges contained in the Butler County criminal actions. (N.T. 8/29/91 at 14).
On August 14, 1991, Bracalielly filed an omnibus pretrial motion in Allegheny County contending that his convictions in Butler County were for offenses arising out of the same criminal conduct as the Allegheny County charges and therefore, the Allegheny County charges were barred by 18 Pa.C.S. § 110. Defendant's Omnibus Pre-Trial Motion at 3-4. After hearing and argument, the trial court denied Bracalielly's motion to quash the charges stemming from the August 7 and August 17 incidents, but did quash the charges arising from the search of Bracalielly's residence on August 20.
Bracalielly appealed and the Commonwealth cross-appealed. The Superior Court reversed the trial court order quashing the charges resulting from the search of Bracalielly's residence on August 20, and affirmed the trial court's denial of *468 Bracalielly's motion to quash the August 7 and August 17 charges. Bracalielly now contends that the Superior Court erred and we should reverse.
Commonwealth v. Starr
On June 22, 1990, Raymond Starr ("Starr") was arrested under two separate criminal complaints alleging the same violations of the Controlled Substance, Drug, Device, and Cosmetic Act. 35 Pa.S. §§ 780 to 960. The first complaint alleged that on January 24, 1989, Starr sold 25 grams of marijuana for $175 to an undercover State Narcotics Agent. Starr was charged with possession of a controlled substance,[24] possession with intent to deliver a controlled substance,[25] and delivery of a controlled substance.[26] Schuylkill County Criminal Action No. 553 of 1989. The second complaint alleged that on February 8, 1989, Starr once again sold marijuana to an undercover State Narcotics Agent. This time Starr sold 26.7 grams for $180. The Commonwealth charged Starr with the same three offenses. Schuylkill County Criminal Action No. 551 of 1989.
On January 5, 1990, Starr was found not guilty of the charges resulting from the February 8, 1989, incident. On February 23, 1990, Starr filed a Motion to Dismiss the charges arising from the incident on January 24, 1989. Starr argued that both transactions were part of the same criminal episode and therefore, 18 Pa.C.S. § 110 barred prosecution of the January 24 charges. The trial court denied the motion and the Superior Court affirmed.
18 Pa.C.S. § 110
Before addressing the merits of these cases, we must determine whether these appeals are properly before this Court. The orders denying both Bracalielly's and Starr's *469 motions to quash are not final orders.[27] However, because 18 Pa.C.S. § 110 statutorily extends Federal and Pennsylvania constitutional protections against double jeopardy and embodies the same basic purposes as those underlying the double jeopardy clauses, the interlocutory appealability of double jeopardy claims has been applied to claims based on Section 110. Commonwealth v. Dozier, 333 Pa.Super. 188, 191, 482 A.2d 236, 238 (1984). See also Commonwealth v. Fields, 491 Pa. 609, 610 n. 1, 421 A.2d 1051, 1052 n. 1 (1980) (denial of defendant's pretrial motion to dismiss an indictment on double jeopardy grounds is final and directly appealable). Therefore, we may properly consider this appeal.
The relevant portions of 18 Pa.C.S. § 110 state:
§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in Section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
* * * * * *
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense;
* * * * * *
*470 Section 110, by barring criminal prosecution for offenses arising from the same criminal episode on which a previous prosecution was based, effectively creates a rule of compulsory joinder. As we stated in Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), Section 110 was
designed to serve two distinct policy considerations: (1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation.
Id. at 489, 458 A.2d at 180 (citations omitted). "By requiring compulsory joinder of all charges arising from a single `transaction,' a defendant need only once `run the gauntlet' and confront the `awesome resources of the state.'" Commonwealth v. Campana, (Campana I), 452 Pa. 233, 251, 304 A.2d 432, 440 (1973).
Section 110(1)(ii) will only bar the instant prosecutions if: (1) the former prosecutions resulted in an acquittal or in a conviction; (2) the instant prosecutions are based on the same criminal conduct or arose from the same criminal episode as the former prosecutions; (3) the prosecutor was aware of the instant charges before the commencement of the trials on the former charges; and (4) the instant charges and the former charges were within the jurisdiction of a single court. 18 Pa.C.S. § 110(1)(ii). It is not disputed that both Bracalielly and Starr satisfy the first and third requirements.
Bracalielly plead guilty to charges in Butler County (N.T. 8/29/91 at 14, 25). A guilty plea constitutes a conviction for purposes of pursuing further prosecution pursuant to 18 Pa.C.S. § 110. Commonwealth v. McPhail, 429 Pa.Super. 103, 106, 631 A.2d 1305, 1307 (1993). Likewise, Starr was acquitted of the charges arising from the February 8, 1989, incident. Thus, the first requirement was satisfied.
With respect to pre-trial knowledge of the additional pending charges, the Commonwealth never disputed that the prosecutors *471 in Butler County had pre-trial knowledge of the pending charges in Allegheny County. Superior Court Op. at 9. The Allegheny County prosecution was initially postponed because of the pending prosecution in Butler County. (N.T. 8/29/91 at 17). Similarly, the Commonwealth does not contend that those prosecuting Starr for the criminal acts occurring on February 8, 1989, lacked pre-trial knowledge of the pending charges arising from the January 24, 1989, incident. Both arrest warrants were issued on the same date by the same District Justice and bear the same incident number.
Analyzing the second requirement, whether the instant prosecutions are based on the same criminal conduct or arose from the same criminal episode as the former prosecutions, proves significantly more difficult. The term "same criminal episode" can be amorphous and troublesome to apply. The seminal decision discussing the term "same criminal episode" is Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983).
In Hude, the defendant (Hude) was arrested and charged with twenty counts of possession and delivery of marijuana and one count of corruption of a minor. These charges arose from a series of sales to the same individual which allegedly occurred between October 1974 and January 1975. After nine possession and delivery counts were dismissed, the Commonwealth brought Hude to trial on three of the remaining possession and delivery charges and the corruption of a minor charge. Hude was acquitted. The Commonwealth then brought Hude to trial on the remaining eight possession and delivery charges.
We held that these remaining eight charges arose from conduct which formed part of the same criminal episode as the conduct on which the initial three possession and delivery charges were based. Therefore, we concluded that the Section 110 barred the second attempt at prosecution and quashed the subsequent indictments. We reasoned:
[t]o interpret the "single criminal episode" test in such a manner as to permit successive trials for each of the alleged transactions would clearly be offensive to the prohibition *472 against successive prosecutions as well as an unjustifiable expenditure of judicial resources. The interpretation of the term "single criminal episode" must not be approached from a hypertechnical and rigid perspective which defeats the purposes for which it was created. Thus, where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of judicial resources. In such cases, failure to consolidate will bar successive prosecutions.
Hude at 494, 458 A.2d at 183.
To determine whether various acts constitute a single criminal episode, Hude requires us to consider two factors: (1) the logical relationship between the acts and (2) the temporal relationship between the acts. Hude at 494, 458 A.2d at 183. While considering these factors, we must remember not to interpret the term "same criminal episode" in a "hypertechnical and rigid perspective which defeats the purpose for which it was created." Id. However, in determining if the "logical relationship" prong of the test has been met, we must also be aware that a mere de minimis duplication of factual and legal issues is insufficient to establish a logical relationship between offenses. Rather what is required is a substantial duplication of issues of law and fact. Hude at 491, 458 A.2d at 181, (quoting Comment, Commonwealth v. Campana and Section 110 of the Crimes Code: Fraternal Twins, 35 U.Pitt.L.Rev. 275, 286-87 (1973)).[28]
In Hude, we found that such substantial duplication had occurred. We did not, however, reach this conclusion by merely cataloguing simple factual similarities or differences between the various offenses with which the defendant was charged. Rather, we found that these offenses presented substantial duplication of issues of law and fact because the *473 case did not involve "a situation where different evidence was required to be introduced to establish the alleged individual instances of possession and delivery", but rather, involved a situation in which the Commonwealth's case in both the first and second drug trials rested solely upon the credibility of a single witness. Hude at 494, 458 A.2d at 183. Thus, we concluded that the drug charges brought against the defendant were not only temporally related but also logically related, and thus constituted a single criminal episode. In applying this analysis to the instant case, we conclude that Bracalielly's criminal actions fail to constitute a single criminal episode.
The Superior Court, in concluding that Bracalielly's acts were not part of the "same criminal episode," stated:
[T]he participants and the coconspirators changed; the quantity and cost of the drugs differed; the sales occurred in different locations; and two different police departments were involved in separate undercover investigations.
Superior Court Memorandum Op. at 11. However, this is the type of rigid hypertechnical analysis which Hude warns against. In any string of drug sales, the quantity, cost, and location will differ. Hude itself determined that drug sales occurring on different dates and involving varying amounts of marijuana (and thus varying prices) was insufficient to escape the conclusion that the sales were part of the same criminal episode. Hude at 493, 458 A.2d at 182-3.
The critical factor which distinguishes this case from Hude and mandates the conclusion that the transactions in Butler County and Allegheny County were not part of the same criminal episode is the independent involvement of two distinct law enforcement entities, for it prevents the substantial duplication of issues of law and fact required under Hude for the transactions to be deemed logically related. Both Butler and Allegheny County law enforcement authorities were conducting separate undercover investigations of Bracalielly. However, no law enforcement officer from Allegheny County participated in the Butler County transactions, and no law enforcement officer from Butler County participated in *474 the Allegheny County transactions.[29] As a result, the instant case is clearly distinguishable from Hude since proof of each individual instance of possession and delivery in each county would not rest solely on the credibility of a single witness, but rather, would require the introduction of the testimony of completely different police officers and expert witnesses as well as the establishment of separate chains of custody. Hence, while the Allegheny County and Butler County transactions may have involved the same informant, they do not present the substantial duplication of issues of law and fact necessary to establish a logical relationship between the crimes.
Since no logical relationship exists between the Butler County and Allegheny County transactions, the Allegheny County charges were not part of the "same criminal conduct" as those in Butler County and, therefore, 18 Pa.C.S. § 110 does not bar the Allegheny County prosecution. While Deardon's participation in the transactions is certainly relevant to the analysis, it is in no way dispositive and cannot overcome the existence of two separate and independent investigations aimed at Bracalielly. We next turn to Commonwealth v. Starr.
*475 We conclude that the two drug transactions in Commonwealth v. Starr were similarly not part of the "same criminal episode." Starr contends that the same confidential informant was used to facilitate each transaction and both purchases were part of an ongoing investigation. Starr argues that he was only arrested after he refused to continue dealing. As support, Starr cites to a preliminary hearing transcript. Unfortunately for Starr, this hearing was conducted before a district magistrate and the transcript was never made part of the certified record. The transcript only appears in Starr's reproduced record.
It is a well settled principle that appellate courts may only consider facts which have been duly certified in the record on appeal. Murphy v. Murphy, 410 Pa.Super. 146, 155, 599 A.2d 647, 652 (1991). See also Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974) (only facts which appear in official record may be considered by a court). An item does not become part of the certified record by simply copying it and including it in the reproduced record. Murphy at 155, 599 A.2d at 652 (citing Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 563 n. 1, 534 A.2d 798, 801 n. 1 (1987), alloc. denied, 518 Pa. 656, 544 A.2d 1342 (1988)). Therefore, we will not consider the preliminary hearing transcript which is found in Starr's reproduced record, but not in the certified record.
Starr argues that even if we ignore the preliminary hearing transcript, there are sufficient facts of record to bring this case squarely within Hude. Starr then cites to numerous "identities of fact," including: (1) both criminal complaints were filed on warrants issued thereon on the same day by the same district justice; (2) upon his arrest, he appeared before the same district justice on both complaints; (3) he was preliminarily arraigned before the same district justice; (4) the criminal informations were almost identical except for the dates, quantities, and prices involved; and (5) a single Notice of Arraignment addressed both term numbers. Through these and other similarities in treatment, Starr claims that the *476 Commonwealth treated the two cases as one from the beginning.
However, such similarities do not prove the transactions were part of the same criminal episode. They fail to demonstrate the required logical or temporal relationship between the acts. Hude requires more. Starr must show how the two transactions themselves were related; not merely how their treatment was related. Alleging that the Commonwealth treated the cases as one is an insufficient nexus. Therefore, upon the facts of the certified record, we are constrained to conclude that the two transactions were not part of the same criminal episode.
Because we conclude that neither Commonwealth v. Bracalielly nor Commonwealth v. Starr involve drug transactions which constitute a "single criminal episode," we find that Section 110 does not bar the instant prosecutions of either Bracalielly or Starr. Therefore, we need not address the issue of whether the violations in each case were within the jurisdiction of a single court.
In conclusion, Section 110 does not bar the charges against Bracalielly brought in Allegheny County. They were not part of the same criminal episode as those brought in Butler County and we affirm the order of the Superior Court in Commonwealth v. Bracalielly. Similarly, Section 110 does not bar prosecution of Starr for the charges arising from the January 24 incident and we therefore affirm the order of the Superior Court in Commonwealth v. Starr.
PAPADAKOS, J., did not participate in the decision of Commonwealth v. Mark Bracalielly, No. 74 W.D. Appeal Dkt. 1993.
ZAPPALA, J., files a Concurring and Dissenting Opinion in which CAPPY, J., joins.
MONTEMURO, J., is sitting by designation.
*477 ZAPPALA, Justice, concurring and dissenting.
I respectfully dissent from the decision of Commonwealth v. Bracalielly. As the majority notes, the principal case defining what constitutes a single criminal episode is Commonwealth v. Hude. In Hude, we applied Section 110 in determining that eleven charges of possession and delivery arising out of a series of transactions were so logically and temporally related as to require that all the charges be tried together. We relied on the fact that the offenses occurred in the same place over a four month period, were arranged by the same person with the same buyer of similar amounts of drugs, and no additional or corroborative testimony would have been required in a second trial.
Hude requires examination of two factors to determine whether various acts constitute one criminal episode: (1) the logical relationship between the acts and (2) the temporal relationship between the acts. In the instant case, the four transactions occurred within a thirteen day period, and the same confidential informant, Michael Deardon, arranged each transaction by calling Bracalielly at his home in Allegheny County. Also, Bracalielly testified that during each transaction, a future transaction was discussed (R. 48a). Thus, the facts are analogous to those in Hude where a temporal and logical relationship was found.
The majority finds that the critical factor which distinguishes this case from Hude is the "independent" involvement of the two distinct law enforcement agencies of Butler County and Allegheny County. Maj. op. at 472. It emphasizes the fact that these authorities were conducting separate undercover investigations of Bracalielly. I question the importance the majority assigns to this factor and whether the record supports the finding that the investigations were independent.
In footnote twenty-nine, the majority quotes testimony given by Detective Evanson of the Cranberry Township (Butler County) Police. The majority cites the portion of the testimony establishing that the informant merely advised Detective Evanson that he was working with Allegheny County authorities. *478 The majority, however, fails to note that the testimony of Detective Evanson also established that the informant specifically told him the names of several officers from Allegheny County with whom he was working and that Evanson himself spoke with those officers.[1] Moreover, the majority also fails to note that agents of the Attorney General were involved in the transactions.[2] Thus, it is not clear that the investigations were in fact independent.
The majority seemingly creates a per se rule that when two law enforcement authorities investigate a single defendant, the offenses cannot be one criminal episode. I disagree. As noted, the proper analysis is whether the acts are temporally and logically related. The fact that two different police departments investigated a single defendant does not, in itself, establish either requirement. The evidence presented in this case clearly establishes one criminal episode notwithstanding the fact that two police departments were involved.
Having determined that the offenses in Bracalielly constitute one criminal episode, we must examine the fourth prong of § 110, that the "instant charges and the former charges were within the jurisdiction of a single court." 18 Pa.C.S. § 110(1)(ii).[3]
The Commonwealth relies on Superior Court cases which interpret the "within the jurisdiction of a single court" language of § 110 to mean venue.[4] The term "venue," however, *479 does not appear in the statute. Had the Legislature intended such a meaning, it could have easily stated that the instant and former charges be "within the jurisdiction and venue of a single court." In any event, the Superior Court cases are not controlling. Our Court has never addressed the application of § 110 in a case involving multi-county offenses. Moreover, when we have discussed the "jurisdiction of a single court" language of § 110, we intimated that the term dealt with the competency of a court, and not necessarily venue.
In Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), we held that § 110 did not bar the prosecution of an aggravated assault charge when the defendant had previously pled guilty to the summary offense of failing to identify himself at the scene of an accident. Our Court distinguished the two offenses by asserting that one was a summary offense within the jurisdiction of the district justice, while the other was within the jurisdiction of the court of common pleas. Thus, the offenses were not "within the jurisdiction of a single court."
We extended this holding in Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987), to include summary offenses under the Crimes Code, again holding that the district justice had original jurisdiction over the summary offense of harassment, *480 while it lacked jurisdiction over a misdemeanor charge of carrying a concealed weapon.
Thus, when considering the purposes underlying the statute, I read "jurisdiction" in § 110 to mean just that. The fact that multiple offenses stemming from one criminal episode cross a county line should not require the Commonwealth to expend resources on two trials and thereby submit the defendant to successive prosecutions. To hold otherwise would be inconsistent with the rationale of § 110.[5]
It must be remembered that the other requirements of § 110 must still be satisfied in order to bar a subsequent prosecution. Obviously, the former prosecution must have resulted in an acquittal or a conviction, there must be one criminal episode, and the prosecutor must be aware of the instant charges before the commencement of the trial on the former charges.[6] The jurisdictional requirement of § 110 would then ensure that a single court would be competent to hear the matter.
Even if one rejects this interpretation and finds that "jurisdiction" in § 110 means venue, the instant charges are still barred. The question to be answered is not necessarily whether Butler County had jurisdiction over all the offenses, but whether the four transactions were within the jurisdiction of a single court. The Crimes Code provides that if a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. 18 Pa.C.S. § 903(c). The multiple drug transactions in the present case were the object of the same ongoing conspiracy between Bracalielly and the informant. The agreement underlying this conspiracy was entered into in Allegheny *481 County, since the informant arranged the transactions by continuously calling Bracalielly at his home.[7] One conspiracy was therefore established, with Allegheny County the proper venue.
In conclusion, because the requirements of § 110 have been satisfied, I would reverse the judgment of the Superior Court affirming the denial of Bracalielly's motion to quash.
Regarding Commonwealth v. Starr, I concur only in the result reached by the majority. I agree that the evidence of record was not sufficient to establish that the transactions there arose from one criminal episode. I reach this conclusion, however, solely because the evidence establishing that the same confidential informant facilitated both transactions was not part of the certified record and therefore is not to be considered in the analysis. Had the preliminary hearing testimony been made a part of the certified record, the required logical relationship would have clearly been established.
CAPPY, J., joins this Concurring and Dissenting Opinion.
NOTES
[1] 35 Pa.S. § 780-113(a)(16).
[2] 35 Pa.S. § 780-113(a)(30).
[3] 35 Pa.S. § 780-113(a)(30).
[4] 18 Pa.C.S. § 903(a)(1).
[5] The facts concerning the Butler County transaction are derived from the notes of testimony dated August 29, 1991, taken in the Court of Common Pleas of Allegheny County; the Notes of Testimony dated June 12, 1991, taken in the Court of Common Pleas of Butler County; and Butler County Criminal Action Nos. A1054 and B1055 of 1990, attached as exhibits to Bracalielly's Memorandum in Support of Motion to Quash.
[6] 35 Pa.S. § 780-113(a)(16).
[7] 35 Pa.S. § 780-113(a)(30).
[8] 18 Pa.C.S. § 903(a).
[9] 35 Pa.S. § 780-113(a)(16).
[10] 35 Pa.S. § 780-113(a)(30).
[11] 35 Pa.S. § 780-113(a)(30).
[12] 18 Pa.C.S. § 903(a)(1).
[13] In this "reverse sting" operation, Bracalielly was to be the buyer rather than the seller.
[14] 35 Pa.S. § 780-113(a)(16).
[15] 35 Pa.S. § 780-113(a)(30).
[16] 18 Pa.C.S. § 903(a)(1).
[17] 18 Pa.C.S. § 907(a).
[18] 18 Pa.C.S. § 908.
[19] 35 Pa.S. § 780-113(a)(16).
[20] 35 Pa.S. § 780-113(a)(30).
[21] 18 Pa.C.S. § 903(a)(1).
[22] 35 Pa.S. § 780-113(a)(31).
[23] 35 Pa.S. § 780-113(a)(32).
[24] 35 Pa.S. § 780-113(a)(16).
[25] 35 Pa.S. § 780-113(a)(30).
[26] 35 Pa.S. § 780-113(a)(30).
[27] There is no doubt that the portion of trial court order in Commonwealth v. Bracalielly dismissing the charges contained in Allegheny County Criminal Action No. 9100984 is a final order. It terminated the Commonwealth's prosecution of those charges and is therefore properly before us. Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 385 (1985) (element of finality inherent in a suppression order is sufficient to render the order appealable).
[28] A literal reading of Hude would seem to indicate that the question of whether offenses share issues of law and fact is a third factor independent of the two other prongs of the Hude test. A closer reading, however, reveals that the determination of whether common issues of law and fact exist is not a separate factor, but rather, the means by which the "logically related" prong of the Hude test is established.
[29] The following testimony given by Detective Evanson of the Cranberry Township Police (Butler County) supports this conclusion:
A. I believe [Deardon] did. I believe he advised me of I can't remember the dates, but if I recall properly he was working with another agency and I do believe he mentioned something about having a deal set up with that agency and Mr. Bracalielly.
Q. And you indicated that you believe he you mentioned that he had a deal set up?
A. Yes.
Q. Did he ever mention that he had a deal?
A. Tell you the truth, I can't recall.
Q. So you can't recall if this confidential informant was involved in what we have termed a deal prior to August 11?
A. I would say that my conversation with him I can't recall as to him indicating that the deal was completed or not. I really wasn't concerned at that point because that was an investigation in Allegheny County.
(N.T. 6/12/91 (Butler County) at 9) attached as Exhibit H to Defendant's Memorandum in Support of Motion to Quash. Thus, although Butler County authorities were aware of the investigation in Allegheny County, they were in no way involved in that investigation.
[1] (N.T. 6/12/91 (Butler County) at 9) attached as Exhibit H to Defendant's Memorandum in Support of Motion to Quash.
[2] Agent Barbara Roberts was involved in both the August 17, 1990, Allegheny County transaction and the August 20, 1990 Butler County transaction.
[3] This prong of a Section 110 analysis was not at issue in Commonwealth v. Starr as there was no multi-county prosecutions.
[4] See e.g. Commonwealth v. Cromwell, 329 Pa.Super. 329, 478 A.2d 813 (1984) (burglaries committed in Somerset and Bedford Counties could not have been consolidated for trial in Somerset County where some of the burglaries took place in Bedford County, even where it was subsequently determined that all of the burglaries were part of the same criminal episode, and therefore, prosecution was not barred by § 110); Commonwealth v. Nichelson, 294 Pa.Super. 438, 440 A.2d 545 (1982) (defendant's prosecution for offenses in Philadelphia County including, inter alia, theft, robbery and conspiracy to commit the same, was not barred because jurisdiction was not proper in a single court); Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984) (defendant's guilty plea in Delaware County to theft related offenses for tractor stolen in Delaware County did not bar subsequent prosecution in Montgomery County of offenses based upon possession of a stolen truck upon which the stolen tractor was sitting during arrest because the offenses were committed against the peace of the respective counties, and defendant was properly charged in both counties); Commonwealth v. Harris, 275 Pa.Super. 18, 418 A.2d 589 (1980) (prosecution in Montgomery County was not barred by prior convictions in Philadelphia County which arose out of the same criminal episode of forcibly abducting the victim from her home in Philadelphia, and taking her to Montgomery County where she was threatened); and Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921 (1972) (defendant's acquittal of charges of receiving stolen property in Philadelphia County did not bar a subsequent prosecution for burglary, larceny and receiving stolen goods in Bucks County because those offenses occurred in Bucks County and were beyond the jurisdiction of Philadelphia County).
[5] My conclusion here is not meant to abrogate the well-established rule that the locus of the crime generally dictates the county in which charges must be brought. The conclusion I reach is limited to circumstances clearly fitting within the confines of § 110.
[6] Contrary to the Commonwealth's contention, a criminal could not strategically plan his crimes so that the entrance of a guilty plea of a lesser offense in one county would negate the future prosecution of more serious offenses in another county.
[7] Bracalielly testified that as to all four transactions, planning and substantial steps were taken in Allegheny County. (R. 33a-41a.) Bracalielly even picked up the informant in Allegheny County before driving to Cranberry Township, to conclude the August 20, 1990, Butler County transaction. (R. 48a-49a). Bracalielly further testified that it was the informant who suggested the locations where the transactions should take place, (R. 35a, 37a), and that as to the two Butler County transactions, the agreement to sell or buy the drugs was entered into in Allegheny County (R. 36a-37a, 40a-41a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1979150/ | 211 B.R. 65 (1996)
In re ALABAMA SYMPHONY ASSOCIATION, Debtor.
BIRMINGHAM MUSICIANS' PROTECTIVE ASSOCIATION, LOCAL 256-733, OF THE AMERICAN FEDERATION OF MUSICIANS, Appellant,
v.
ALABAMA SYMPHONY ASSOCIATION, Appellee.
Bankruptcy No. 93-00457, No. CV-93-B-1385-S.
United States District Court, N.D. Alabama, Southern Division.
September 30, 1996.
*66 Jerry W. Schoel, Schoel Ogle Benton & Centeno, Birmingham, AL, for Birmingham Musicians' Protective Ass'n, Local 256-733, of American Federation of Musicians.
John P. Whittington, Patrick Darby, Bradley Arant Rose & White, Birmingham, AL, for Alabama Symphony Ass'n.
Patricia Polach, Bredhoff & Kaiser, Washington, DC, for American Federation of Musicians of U.S. and Canada.
MEMORANDUM OPINION
BLACKBURN, District Judge.
This case is before the court on appeal from a decision in the United States Bankruptcy Court for the Northern District of Alabama, entered May 17, 1993, allowing the *67 appellee to reject a collective bargaining agreement and limit its benefit payments under the cafeteria plan. After reviewing the record and the submissions of the parties, the court is of the opinion that the decision of the bankruptcy court is due to be affirmed in part and reversed in part.
FACTUAL BACKGROUND[1]
The Alabama Symphony Orchestra Association ("the Symphony") was formed in 1933 and reincorporated under Alabama's laws for nonprofit organizations in 1982, and was known as the Birmingham Symphony Orchestra. It took its current name in 1986. Prior to filing its Chapter 11 bankruptcy petition, the Symphony conducted a season of 45 weeks, during which it presented 75 concerts throughout the state. The Symphony employed 85 people, including 74 musicians.
The Alabama Symphony Foundation ("the Foundation"), a distinct legal entity, was incorporated in 1987 with the purpose of supporting the Symphony by the establishment of a permanent endowment fund. At the time of the bankruptcy court's order, the Foundation held approximately one million dollars in the endowment, on which it received approximately $50,000.00 to $70,000.00 per year in interest.
The Birmingham Musicians' Protective Association ("the Musicians") is a division of the American Federation of Musicians, and it is the collective bargaining unit to which the musicians belong. It is an authorized collective bargaining unit pursuant to the Labor Management Relations Act, 29 U.S.C. §§ 141-197.
The 1991-1994 Collective Bargaining Agreement ("the CBA") between the Symphony and the Musicians is a comprehensive document detailing the working relationship between the parties, including such particulars as wages, benefits, and the physical environment in which the musicians perform. The CBA provides for wages in its first and second year that are lower than under previous agreements, but it also provides that in the third year of the agreement, a "snap-back" provision will restore the musicians' compensation to pre-1991 levels. The cafeteria plan for benefits is a flexible plan created in accordance with Section 125 of the Internal Revenue Code, and it is maintained for the benefit of all the Symphony employees, including the musicians.
The Symphony has had financial difficulty since the early part of the 1980's, and at the time of its Chapter 11 petition, it had debts of approximately $1.745 million. The 1992 season opened with financial concerns which became more acute when the government grants, projected to account for 29 percent of the 1992-93 budget, were not forthcoming. Despite lobbying efforts on behalf of the Symphony, the funds eventually received from the state amounted to only $500,000.00 for 1992-93. The Symphony approached its lenders to attempt a debt restructuring, which they granted, reducing somewhat the total amount owed, requiring the Symphony to maintain a balanced budget, dictating what was to be done with the interest from the Foundation endowment, and effectively precluding further borrowing by the Symphony.
In 1992, the Symphony began attempts to scale back the compensation and benefits of the musicians, and in July 1992, a meeting was held to examine three proposals for reducing the number of musicians and/or the number of weeks of work. At subsequent meetings, other approaches were presented. Eventually, the musicians were presented with two proposals on September 10, 1992, each of which significantly reduced the musicians' pay and benefits. The musicians declined to vote on the proposals. When the Symphony found out that the musicians were not going to vote, the Symphony representative wrote the musicians a letter asking them to vote to approve one of the proposals, but they still did not.
The musicians did not receive their scheduled paychecks on September 15, 1992. Non-musician employees were paid. Nonetheless, the musicians decided to go forward with rehearsals and performances. They did, however, file a charge with the National Labor Relations Board, alleging that their *68 paychecks were withheld in retaliation for their acts in response to the Symphony's September 10 proposals. The musicians received their normal paycheck on September 30.
On January 9, 1993, the musicians were presented with a new proposal, still including significant cuts in the number of musicians as well as weeks played. The Symphony requested a response to the proposal by January 18, 1993. On January 12, 1993, the musicians voted to reject the January 9 proposal. The Symphony wrote the musicians asking reconsideration of the vote.
The musicians received only half of their regular paycheck on January 15, and they informed the Symphony that they would continue to work only if they received their full paychecks. They were waiting to see if full payment was forthcoming before deciding whether to play the scheduled (and completely sold-out) concerts featuring Emmylou Harris. However, apparently before the musicians had made their decision, they heard from the Civic Center stage hands that they had already been instructed to tear down the stage for the Harris concert. The musicians informed the Symphony late in the evening on January 18 that the musicians would not reconsider their January 12 vote.
The next day, the Symphony filed its Chapter 11 bankruptcy petition. After filing the petition, the Symphony presented other proposals, all of which the musicians rejected. They did, however, indicate a willingness to negotiate, conditioned on the Symphony's payment of salaries and reinstatement of benefits, all of which had ceased as of January 15, 1993. The Symphony and the musicians could not reach an agreement.
The Symphony petitioned the Bankruptcy Court for a rejection of the CBA, contending that any efforts to reorganize were effectively precluded by the CBA. In its opinion, filed on May 17, 1993, the court found that the Symphony was entitled to reject the CBA and to limit payments under its cafeteria plan.[2] The musicians appealed that decision to this court. On November 19, 1993, the Bankruptcy Court entered an order converting the Chapter 11 case to a Chapter 7 case.
STANDARD OF REVIEW
A bankruptcy court's findings of fact shall not be set aside unless they are clearly erroneous. FED. R. BANKR. P. 8013. A bankruptcy court's conclusions of law are subject to de novo review. In re Holywell Corp., 913 F.2d 873, 879 (11th Cir.1990).
DISCUSSION
This case presents two related issues: the petition to reject the CBA and the petition to return to the express terms of the cafeteria plan. The bankruptcy court granted both petitions. This court will first address the question of the propriety of allowing the Symphony to return to the express terms of the cafeteria plan.
In its Motion for Authority to Limit Cafeteria Plan Payments, the Symphony seeks permission to return to conformity with the express terms of the plan and to cease its voluntary compliance with the suggested Treasury Regulations, by which the Symphony says it made available to the musicians at the beginning of the year the entire amount that they were expected to contribute during the entire year.
The musicians have not argued and have not presented evidence that the change the Symphony sought is not a return to the original terms. The court notes the musicians' argument that the bankruptcy court is without authority to order permanent modifications to a CBA, but this court sees no evidence that is in fact what the Symphony sought concerning the cafeteria plan. To the contrary, it seems to have asked explicitly only for a return to the terms of the agreement. Therefore, to the extent that the Symphony seeks to discontinue its voluntary compliance with the suggested Treasury Regulations and comply with the terms of the cafeteria plan as originally agreed by the parties, the bankruptcy court's order is due to be affirmed.
*69 The second issue in this case, the question of the propriety of allowing the Symphony to reject the CBA with the musicians, is more complex. The issue of rejecting a CBA in the context of bankruptcy has a somewhat convoluted history, as the bankruptcy judge thoroughly addressed her opinion. The question came before the Supreme Court in NLRB v. Bildisco and Bildisco, 465 U.S. 513, 104 S. Ct. 1188, 79 L. Ed. 2d 482 (1984), and was resolved in favor of the debtor, allowing rejection of the contract. 465 U.S. at 526, 104 S.Ct. at 1196. Congress, evidently keenly aware of the impact that the decision would have on members of unions across the country, reacted by enacting 11 U.S.C. § 1113 only a few months later. Since that time, two lines of interpretation have developed as the courts have applied the new law to the situation the court faced in Bildisco, and they appear to this court to be irreconcilable with each other. One line finds that a breach of contract is not a violation of § 1113(f);[3] the other line of cases finds that failure to perform the obligations prior to obtaining court permission to do so is a violation of § 1113(f).[4]
This court finds no clear error in the bankruptcy court's findings of fact. However, concerning the bankruptcy court's conclusions of law, this court finds persuasive the line of cases holding that a breach is of the CBA is a violation of § 1113(f), and is persuaded that allowing a rejection of the CBA is improper when the debtor has unilaterally ceased performing its obligations under the CBA prior to seeking court permission to modify or reject the CBA. The court notes that in the present case, the debtor apparently failed to perform in full its obligations under the CBA even prior to filing under Chapter 11 on January 19, 1993, as evidenced by its failure to pay the musicians the full amount of wages due on January 15, 1993.
11 U.S.C. § 1113
The process for rejecting a CBA is set out in 11 U.S.C. § 1113, whose history the bankruptcy court discussed thoroughly, and which this court need not repeat here. The subsection of most importance to the present case states that "[n]o provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section." 11 U.S.C. § 1113(f).
The drafters of § 1113,[5] however, were not as clear as they might have been,[6] and the interpretation of the law has not been consistent among the courts that have examined the section. As a question of law, the bankruptcy court's application of 11 U.S.C. § 1113(f) must be reviewed de novo. This court has found no controlling authority and has found a split in the courts that have addressed the question, centered on two lines of argument.
The different interpretations of this section are epitomized by In re Moline Corp., 144 B.R. 75 (Bankr.N.D.Ill.1992) and In re Armstrong Store Fixtures Corp., 135 B.R. 18 (Bankr.W.D.Penn.1992), reconsideration denied, 139 B.R. 347 (Bankr.W.D.Penn). In re Moline, which the bankruptcy court found *70 persuasive, dealt with a debtor in possession which had failed to pay pre-petition debts incurred under a CBA although it had complied with the obligations of the CBA while operating as a debtor in possession. Moline, 144 B.R. at 76. The issue before the court was the priority to be accorded claims arising out of CBAs that have not been rejected, an issue different from that before the bankruptcy court in this case. However, the court's reasoning concerning § 1113 and rejection of the CBA is applicable to the present case.
The court in Moline reasoned that until a trustee or debtor in possession[7] rejects a CBA, it must abide by the terms of the agreement.Id. at 78. The court added, however, that although a debtor who fails to make payments under the terms of the agreement may have breached the agreement, "the debtor has neither altered nor terminated the collective bargaining agreement. No term of the contract has been altered. No rights under the contract have been terminated. The contract is exactly the same collective bargaining agreement the parties entered into before the Chapter 11 case."Id. at 79. The court thus found that a breach of contract did not amount to a violation of § 1113(f). Id.
The court in Armstrong, which also addressed the issue of priority of claims in the case of a breach of contract, reached a different conclusion.[8] The Armstrong court faced a situation in which the debtor had failed to abide by the terms of a CBA with the employees, although the debtor had not at any time sought to alter or terminate its obligations under the CBA. Armstrong, 135 B.R. at 21. The court found that the debtor's failure to abide by the terms of the contract constituted a unilateral alteration of the agreement in violation of § 1113(f): "Debtors effected a unilateral alteration of the agreements, for purposes of § 1113(f), when they failed to abide by the provisions pertaining to payment of wages and benefits." Id.
Thus, the court in Moline found that a breach of contract constituted a breach only, and did not amount to a termination or alteration of the CBA in violation of § 1113(f), while the Armstrong court found that a breach of contract prior to seeking rejection of that contract is a unilateral termination or alteration in violation of § 1113(f).
In the present case, as in Bildisco, the Symphony sought a self-help remedy in deciding to stop making payments of compensation and benefits prior to asking the bankruptcy court for relief from its obligations under the CBA. The Symphony never sought the permission of the court for interim relief as provided in § 1113(e), and did not at any time prior to requesting rejection of the CBA cure its ongoing failure to abide by the terms of the agreement.
If a debtor is free to breach the CBA without impairing its ability to reject the contract later, then § 1113 provides no incentive to abide by the terms of the CBA in the interim. This court finds persuasive the reasoning of the Second Circuit in In re Ionosphere Clubs, Inc., 922 F.2d 984 (2d Cir. 1990), cert. denied sub nom, Air Line Pilots Ass'n, Int'l, AFL-CIO v. Shugrue, 502 U.S. 808, 112 S. Ct. 50, 116 L. Ed. 2d 28 (1991), concerning the scope and application of § 1113(f). Although the court's examination of § 1113(f) was in the context of the issue of the automatic stay provisions and questions of arbitration, it noted that the alterations in *71 the law were made in response to Bildisco, in which a debtor refused to abide by its obligations under a CBA and withheld payment without negotiating with the union and prior to obtaining court permission to modify the CBA. The court noted further that the events in Bildisco could be said to represent the ills that Congress sought to cure by way of § 1113. Ionosphere Clubs, 922 F.2d at 990. The court concluded from the language of the statute, from statements of the sponsors of the legislation, and from the context of its enactment, "that Congress intended that a collective bargaining agreement remain in effect and that the collective bargaining process continue after the filing of a bankruptcy petition unless and until the debtor complies with the provisions of § 1113." Id. (citations omitted). Such a goal would not be possible without deterring the debtor from unilateral action, and preclusion of rejection seems clearly the deterrent that Congress envisioned.
Congressional intent to prevent the unilateral rejection of CBAs that occurred in Bildisco is accomplished only if a breach of contract is viewed as a violation of § 1113(f) preventing rejection of the contract. Any other reading means that the current law prescribes no different result in practice than that in Bildisco and thus provides no deterrent to breach. The practical result is that there would be no difference in the result under Bildisco and under § 1113, which Congress enacted to prevent a recurrence of the situation in Bildisco. Thus, the only logical reading of the law is that a breach prior to obtaining permission from the bankruptcy court to terminate or modify a CBA precludes its rejection.
In addition, the inclusion of the emergency modification provision in § 1113(e) would be meaningless if Congress intended the debtor to be able to breach an agreement with impunity, still able to petition successfully to reject it later. There is no reason to enact an emergency provision if the law allows the debtor to stop performing its obligations under the contract prior to court intervention. The inclusion of the emergency modification provision is strong evidence that Congress envisioned no possibility of self-help modifications prior to the bankruptcy court's consideration of the petition to reject the contract.
Thus, the court finds that 11 U.S.C. § 1113 precludes the rejection of the contract by the Symphony in this case, since it impermissibly stopped performing its obligations under the CBA prior to seeking court permission to do so. That breach of contract constituted a violation of § 1113(f), and the bankruptcy court's allowing the rejection after the Symphony had unilaterally stopped fulfilling its obligations under the CBA was improper.
FAIR TREATMENT AND GOOD FAITH
The musicians assert as further grounds for this appeal that the bankruptcy court erred by finding compliance with § 1113's requirements that all parties be treated fairly and equitably and that the dealings be in good faith. This court has found that, as a matter of law, the Symphony should not have been allowed to reject the contract because of its violation of § 1113(f). For that reason, the court does not reach the issue of asserted error in the analysis of the fairness and good faith of the dealings between the parties.
CONCLUSION
For the foregoing reasons, the court finds that the decision below allowing the Symphony to limit its payments under the cafeteria plan to payments in conformity with the express terms of the plan is due to be affirmed; the bankruptcy court's decision to allow the Symphony to reject the CBA with the Musicians is due to be reversed and vacated. An Order so directing will be entered with this Opinion.
NOTES
[1] The facts are taken from pages 1-16 of the Memorandum Opinion [R. 258-273] of Judge Tamara Mitchell, United States Bankruptcy Court for the Northern District of Alabama.
[2] Although the bankruptcy court's opinion grants the Symphony's Motion to Limit Cafeteria Payments, the record presently before this court does not indicate that the "limit" was anything other than a cessation of contributions and benefit payments.
[3] Rejection of a CBA would therefore continue to be appropriate.
[4] Rejection of a CBA would then be inappropriate.
[5] The legislative history of § 1113 is sparse. However, the remarks of some of the members are consistent in stating that the drafters wanted to avoid future cases similar to Bildisco. Mr. Dole stated that the new law "overturns the [Bildisco] court ruling with regard to unilateral rejection, and requires now a prior court hearing and ruling upon an application for rejection of a collective bargaining agreement." (130 Cong. Rec. § 8890 (June 29, 1984)). Mr. Morrison pointed out that the agreed language (of § 1113) "moves us in the direction of a negotiation process rather than a litigation process to save companies that are in trouble without permitting any abuse of chapter 11 to vitiate improperly labor contracts." (130 Cong. Rec. H 7495 (June 29, 1984)). Mr. Lungren added that "a major part of this is that we no longer allow unilateral rejection. There is a process that must be gone through before that can be entertained. That is an abrogation of the contract, and that is a significant difference in the law prior to this time." (130 Cong. Rec. H 7496 (June 29, 1984)).
[6] The court in In re Moline Corp., 144 B.R. 75, 78 (Bankr.N.D.Ill.1992), for example, describes some of the language that perhaps represents "drafting errors" in the section.
[7] As the court points out, while § 1113(a) binds the trustee or the debtor in possession in assuming or rejecting a CBA, § 1113(f) refers only to the trustee. Moline, 144 B.R. at 79 and n. 1. However, this court agrees with the Moline court that the two subsections are both intended to include the same people, that is, both the trustee and the debtor in possession. Any other reading of the section would allow the debtor in possession to do what is specifically forbidden for a trustee, a result that the drafters certainly cannot have intended absent explicit language authorizing such action.
[8] Collier notes that "debtors remain obligated to pay wages and benefits in accordance with the collective bargaining agreements as they become due, and the failure to do so has been held to be a unilateral alteration of the agreement in violation of section 1113(f), not merely a breach of the agreement." 5 Collier on Bankruptcy, paragraph 1113.01 and note 34d (1994). Collier's citations are then to cases that have held that a breach is a violation of § 1113(f), with the exception of Moline, which is the only case he cites for the contrary proposition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1973000/ | 78 B.R. 92 (1987)
In re W.L. BRADLEY COMPANY, INC., Debtor.
Bankruptcy No. 86-01936G.
United States Bankruptcy Court, E.D. Pennsylvania.
September 29, 1987.
Jeffrey M. Chebot, Philadelphia, Pa., for Sunkist Growers, Inc.
Kevin W. Walsh, Adelman Lavine Gold & Levin, Philadelphia, Pa., for debtor W.L. Bradley Co.
MEMORANDUM OPINION
BRUCE FOX, Bankruptcy Judge:
The issue in this case is whether a successful claimant under the trust provisions of the Perishable Agricultural Commodities Act, as amended, 7 U.S.C. § 499e(c)(2) ("PACA"), is entitled to prejudgment interest on its trust claim and reasonable attorney's fees for prosecuting a lawsuit to enforce its rights under the trust. For the reasons set forth below, I hold that such a claimant is entitled to prejudgment interest commencing upon the date of default absent persuasive countervailing equitable considerations. I also conclude, however, that a PACA claimant is not entitled to attorney's fees unless there is a contractual basis for such an award.
I.
The debtor, W.L. Bradley Co., Inc., filed a voluntary petition under chapter 11 of the Bankruptcy Code on April 18, 1986. On December 22, 1986, Sunkist Growers, Inc. ("Sunkist") filed a motion "for relief from the automatic stay under section 362(a) and for turnover of property not part of debtor's estate; and for abandonment and possession of trust corpus under section 554(b) and for interest and attorney's fees." Sunkist asserted that it held a perfected interest as a trust beneficiary in a non-segregated, floating trust pursuant to PACA and that it was entitled to immediate payment of $37,585.90, representing the amount owed by the debtor for the fruit Sunkist shipped to the debtor prepetition.
After conducting a hearing on the motion, I issued an opinion and order: (1) finding that the debtor was holding $37,585.90 in trust for Sunkist; (2) granting Sunkist relief from the automatic stay; and (3) directing the debtor to promptly pay the trust funds to Sunkist. In re W.L. Bradley Co., 75 B.R. 505 (Bankr.E.D.Pa.1987). (Bradley I).[1]
At the hearing on Sunkist's motion, the parties agreed that Sunkist's request for interest on the unpaid trust funds, attorney's fees and costs would be considered at a later hearing. That hearing was held on August 12, 1987.
II.
PACA establishes a trust for the benefit of all unpaid suppliers or sellers of perishable *93 agricultural commodities or agents involved in the transaction which, if properly perfected, exists "until full payment of the sums owing in connection with such transactions has been received by such unpaid suppliers, sellers, or agents." 7 U.S.C. § 499e(c)(2). The heart of Sunkist's argument in this case is that the statutory term "full payment" encompasses prejudgment interest and attorney's fees. In support of its claim, Sunkist cites one reported PACA decision. In re Monterey House, 71 B.R. 244 (Bankr.S.D.Tex.1986). Because cases under the trust amendments to the Packers and Stockyards Act, 7 U.S.C. § 196 ("PSA"), provide guidance in construing PACA, see Bradley I, 75 B.R. at 509, Sunkist also relies on two reported PSA decisions. Pennsylvania Agricultural Cooperative Marketing Association v. Ezra Martin Co., 495 F. Supp. 565 (M.D.Pa.1980); In re G & L Packing Co., 20 B.R. 789 (Bankr.N.D.N.Y.1982), aff'd, 41 B.R. 903 (N.D.N.Y.1984).
I first address the issue of prejudgment interest.
Since Sunkist's claim arises under a federal statute, the availability of interest is governed by federal law. Poleto v. Consolidated Rail Corp., 826 F.2d 1270 (3d Cir.1987). The general federal interest statute, 28 U.S.C. § 1961, is silent on the question of prejudgment interest. This silence, however, is not determinative. "Congress has not by its silence [in 28 U.S.C. § 1961] ruled out the award of prejudgment interest. Poleto, at 1274. Nor is the absence of a provision in PACA concerning prejudgment interest controlling:
The failure to mention interest in statutes which create obligations has not been interpreted by [the Supreme] Court as manifesting an unequivocal congressional purpose that the obligation shall not bear interest. For in the absence of an unequivocal prohibition of interest on such obligations, [the Supreme] Court has fashioned rules which granted or denied interest on particular statutory obligations by an appraisal of the congressional purpose in imposing them and in the light of general principles deemed relevant by the Court.
Rodgers v. United States, 332 U.S. 371, 373, 68 S. Ct. 5, 7, 92 L. Ed. 3 (1947) (citations omitted), quoted in Poleto, at 1274. Similarly, the Third Circuit Court of Appeals instructs that the Congressional purposes behind the statutory enactment be considered in order to determine whether those purposes would be furthered by imposition of prejudgment interest. Poleto, at 1275.
As I previously observed, the PACA trust provisions were enacted "to increase the legal protection for unpaid sellers and suppliers of perishable agricultural commodities until full payment of sums due have been received by them." Bradley I, 75 B.R. at 509, quoting H.R. No. 98-543, 98th Cong., 1st Sess. 3 (1983) ("House Report"). The legislative history identifies at least two conditions in the perishable agricultural commodities industry which dictated the need for increased protections for sellers: (1) prior to 1983, there had been an increase in the number of instances in which buyers had failed to pay for produce or had made "slow payments;" and (2) many sellers are small businesses which cannot survive if they suffer significant losses or "delays." House Report at 3. Certainly, the cornerstone of the PACA trust provisions is the trust beneficiary status which Congress accorded sellers, suppliers and agents. The trust renders the beneficiary's claim superior to any security interest in inventory held by the buyer's secured lender. In re Prange Foods, 63 B.R. 211, 214 (Bankr.W.D.Mich.1986). If the desire to minimize the risks of a total loss might not, by itself, justify the award of prejudgment interest, the legislative history demonstrates that Congress was concerned not only with a seller's ultimate ability to enforce a claim, but also the speed with which the claims are paid:
The Committee believes that the statutory trust requirements will not be a burden to the lending institutions. They will be known to and considered by prospective lenders in extending credit. The assurance the trust provision gives that raw products will be paid for promptly and that there is a monitoring system *94 provided for under the Act will protect the interests of the borrower, the money lender, and the fruit and vegetable industry.
House Report at 4 (emphasis added).
The Congressional concern for prompt payment of PACA trust obligations convinces me that the grant of prejudgment interest will fulfill the legislative purposes of the statute, by denying to the purchaser any benefit to be derived from slow payment. Moreover, if payment is not made promptly, the harm to the trust claimant will be ameliorated partially by the prejudgment interest. See generally Arco Pipeline Co. v. SS Trade Star, 693 F.2d 280 (3d Cir.1982) (purpose of prejudgment interest is to reimburse the claimant for the loss of the use of its funds from the time of the loss until the entry of judgment). As a result, I am in agreement with the result of Monterey House and I hold that a successful PACA claimant is entitled to prejudgment interest.[2]
The debtor contends that if prejudgment interest is awarded, interest should run only from December 23, 1986, the date Sunkist initiated proceedings in this court to compel payment of the trust benefits and not from the date of default. The debtor emphasizes that there was no evidence that there was a course of dealing between the parties to assess interest on delinquent invoices and that Sunkist waited approximately eight months before filing suit for payment. I am not persuaded by these arguments.
I accept the debtor's premise that the award of prejudgment interest is derived from the court's equitable powers. Marshall v. Burger King Corp., 509 F. Supp. 353 (S.D.N.Y.1981). See also Pension Benefit Guaranty Corp. v. Greene, 570 F. Supp. 1483 (W.D.Pa.1983); Nedd v. United Mine Workers, 488 F. Supp. 1208 (M.D. Pa.1980). Thus, notwithstanding the strong statutory policy supporting the award of prejudgment interest in PACA cases, there could be circumstances in which the award of interest would be inequitable. General Motors Corp. v. Devex Corp., 461 U.S. 648, 655, 103 S. Ct. 2058, 2062, 76 L. Ed. 2d 211 (1983) (in light of purposes of the patent laws, prejudgment interest under 35 U.S.C. § 284 should "ordinarily" be awarded); Schering Corp. v. Precision-Cosmet Co., 614 F. Supp. 1368, 1383 (D.Del.1985) (prejudgment interest awarded in patent case where no facts established to show the award would be "inappropriate").
In this case, there is nothing to convince me to exercise any discretion I may have to deny Sunkist prejudgment interest. The absence of a course of dealing or contract right to interest is immaterial. The right to prejudgment interest in this case is ultimately derived from the statute and stands independent of any express or implied agreement of the parties. Nor do I find the eight month delay inequitable to the debtor. First, I observe that eight months is not an unduly lengthy period to refrain from instituting suit. Moreover, the debtor suffered no harm and may even have benefited from the delay. During the eight month period, the debtor retained the use of the trust funds and had potentially valuable time to attempt to formulate a chapter 11 reorganization plan. In these circumstances, an award of prejudgment interest is fully warranted, running from the date of default.[3]
*95 III.
The debtor's objection to Sunkist's request for an award of attorney's fees is on much firmer footing. Sunkist argues that a payment can be "full" only if it is reimbursed for its outlay of attorney's fees and that such a conclusion is consonant with the statutory purposes of PACA. As explained below, however, the propriety of an award of attorney's fees to a prevailing party under a statute which is silent on the issue, unlike the inquiry into prejudgment interest, is not a matter of evaluating whether the award is consistent with the statute's purposes.
The case which is controlling on the issue is Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). In Alyeska, the Supreme Court reinforced the "American Rule" that a prevailing litigant is not entitled to collect reasonable attorney's fees from the losing party. There have been several traditional exceptions to the American Rule. Courts may award attorney's fees: (1) as part of the remedy for a willful violation of a court order; (2) against a losing party who has acted in bad faith; and (3) to litigants who have created a common fund for the benefit of others. Alyeska, 421 U.S. at 257-59, 95 S. Ct. at 1621-22; E. Larson, Federal Court Awards of Attorney's Fees 4 (1981).[4] In Alyeska, the Supreme Court acknowledged these exceptions as "assertions of inherent power in the courts to allow attorney's fees in particular situations, unless forbidden by Congress." 421 U.S. at 259, 95 S.Ct. at 1622. The Court held that the inherent power of the federal courts to award fees did not extend to a federal statute containing a "private attorney general" enforcement scheme, reasoning as follows:
Congress has not repudiated the judicially fashioned exceptions to the general rule against allowing substantial attorneys' fees; but neither has it retracted, repealed, or modified the limitations on taxable fees contained in [the Act of Feb. 26, 1853, 10 Stat. 161] and its successors. Nor has it extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted. What Congress has done, however, while fully recognizing and accepting the general rule, is to make specific and explicit provisions for the allowance of attorneys' fees under selected statutes granting or protecting various federal rights. . . . Under this scheme of things, it is apparent that the circumstances under which attorneys' fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine.
Id. at 260-62, 95 S. Ct. at 1623-24. (footnote omitted.)
One commentator observes that there are more than two hundred federal causes of action in which Congress has expressly provided for an award of attorney's fees. M. Derfner, A. Wolf, 1 Court Awarded Attorney Fees ¶ 5.01 (1986). Against this background and the Supreme Court's decision in Alyeska, the absence of an explicit statutory right to an award of attorney's fees in 7 U.S.C. § 499e(c)(2) for enforcement of the PACA trust provisions is highly persuasive. Moreover, in PACA itself, Congress expressly provided an entitlement to attorney's fees to an appellee who *96 prevails in an appeal from a reparation order for violation of 7 U.S.C. § 499b. See 7 U.S.C. § 499g(c). The absence of a similar provision in section 499e(c)(2) is further evidence that Congress did not intend to award attorney's fees to trust beneficiaries under PACA.[5] Therefore, I conclude that Sunkist has no entitlement to an award of attorney's fees.
An order consistent with this memorandum opinion will be entered.
NOTES
[1] The Bradley I opinion contains a full statement of the underlying facts in this case and a discussion of the purposes and operation of PACA. In the interest of economy, the facts and discussion will not be repeated herein.
[2] The debtor suggests that the statutory term "full payment" be construed with reference to the regulations issued under PACA by the U.S. Department of Agriculture. The regulations define the term "full payment promptly" as "payment for produce purchased by a buyer, within ten days after the day on which the produce is received. . . ." Emphasizing the agency regulation's reference to "produce purchased," the debtor argues that the statutory term "full payment" should be construed narrowly to mean only the principal debt (i.e., the invoice sales price). However, as Sunkist correctly points out, the regulation is merely designed to determine the default date; it does not define what constitutes full payment if payment is not prompt. Thus, the regulation is not probative on the issue at bench and it is appropriate to determine the propriety of prejudgment interest by reference to the statute's underlying purposes.
[3] Sunkist seeks interest at the statutory rate set forth in 28 U.S.C. § 1961. Although the debtor contended at oral argument that the applicable rate should be six percent, it has apparently abandoned that position as it was not raised in the memorandum of law later submitted by the debtor. In any event, I find the appropriate rate in this case to be that set forth in 28 U.S.C. § 1961. I presume that the parties will be able to apply section 1961 and agree upon the amount of prejudgment interest due. If not, Sunkist may request a hearing on the issue.
I note also that the debtor argues that any prejudgment interest awarded should not be considered part of the trust claim but should be treated as a general unsecured claim. In light of the statutory purposes of PACA discussed earlier, I conclude that the prejudgment interest is appropriately treated as a component of the trust claim itself. Therefore, I reject the debtor's argument and I will direct that the debtor pay the prejudgment interest to Sunkist forthwith.
[4] The three exceptions do not define the entire universe of cases in which courts may grant attorney's fees. For example, a litigant may obligate himself by contract to pay the legal expenses of his adversary. See generally M. Derfner, A. Wolf, 1 Court Awarding Attorney Fees ¶ 1.02 (1986).
[5] I decline to follow In re Monterey House, Inc., 71 B.R. 244 (Bankr.S.D.Tex.1986) to the extent it holds to the contrary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2392070/ | 564 S.W.2d 682 (1978)
Raul TREVINO et al., Petitioners,
v.
Patrick A. TURCOTTE et al., Respondents.
No. B-6474.
Supreme Court of Texas.
March 15, 1978.
Rehearing Denied April 26, 1978.
*683 Tom N. Goodwin, John E. Fitzgibbon, William C. Wright, Laredo, Day & Day, Joe Day, Fort Worth, Vela & Vela, Moises Vela, Harlingen, Downman, Jones & Musslewhite, Norman Jones, Baker & Botts, Denman Moody, Houston, Perkins, Davis, Oden & Warburton, Kenneth Oden, Alice, Lee H. Lytton, III, Corpus Christi, Rankin & Kern, Inc., H. H. Rankin, Jr., McAllen, John L. Hill, Atty. Gen., Stephen J. Wilkinson, Asst. Atty. Gen., Austin, Elmore H. Borchers, *684 Laredo, Harry J. Schulz, Three Rivers, for petitioners.
Wood, Burney, Nesbitt & Ryan, Frank W. Nesbitt, Corpus Christi, for respondents.
BARROW, Justice.
This is a will contest involving the 1960 will of Mrs. Sarita K. East who died on February 11, 1961. The issue presented by this appeal does not concern the actual validity of the will. It is instead whether respondents, who are the widow and six children of Edgar Turcotte, deceased, have an interest in the estate of Mrs. East which will entitle them, or some of them, to contest the will. The district court, sitting without a jury, conducted a trial on the issue of respondents' interest and entered a judgment which dismissed all respondents from the will contest on the ground that they are not interested persons within the meaning of Section 93 of the Texas Probate Code. On appeal, the court of civil appeals affirmed as to all respondents except Patrick A. Turcotte and Robert A. Turcotte. The judgment of the trial court insofar as it affects Patrick A. Turcotte and Robert A. Turcotte was reversed and remanded for trial on the merits. Turcotte v. Trevino, 544 S.W.2d 463 (Tex.Civ.App.Corpus Christi, 1976). We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
The factual background of this case and the long history of the litigation is fully set out in the two opinions of the Thirteenth Court of Civil Appeals. See Turcotte v. Trevino, 499 S.W.2d 705 (Tex.Civ.App. Corpus Christi 1973, writ ref'd n. r. e.), and Turcotte v. Trevino, supra.[1] We will repeat only those facts, circumstances, and legal principles necessary for the disposition of this appeal.
Mrs. East executed one will dated December 31, 1948, and another on January 22, 1960. Four codicils were subsequently made to the 1960 will. The 1960 will was duly admitted to probate and Edgar Turcotte qualified as one of three independent executors of the estate; he served in that capacity until his death on March 18, 1963. On July 25, 1962, petitioner Raul Trevino and 39 others filed a will contest. Numerous parties intervened including Patrick A. Turcotte, individually and in his capacity as Independent Executor of the Estate of Edgar Turcotte, who intervened along with Edgar Turcotte's widow and other children on December 20, 1963. Marie Walker and her brother, Robert C. Putegnat, intervened on September 30, 1963. At one time there were over 120 contestants of the 1960 will. All contestants, with the exception of respondents, have now been finally dismissed, or have settled and agreed to probate the 1960 will.
None of the respondents is an heir at law of Mrs. East. Three of Edgar Turcotte's children, Jack, Joe an L. E. Jr., were employees of Mrs. East at the time of her death and, as such, received cash bequests under the 1960 will. None of the other respondents is a legatee or devisee under either the 1948 or 1960 wills. Respondents urge, however, that they are "interested persons" in that they are the sole heirs at law, and the only beneficiaries under the will, of Edgar Turcotte, a cousin of Mrs. East and a devisee of substantial bequests in both the 1948 and 1960 wills. In addition, Patrick and Robert Turcotte claim to be interested persons in the East estate in their own right by virtue of assignments which they acquired from Marie Walker and Robert Putegnat. Patrick Turcotte *685 purchased a total of ten percent of Walker's and Putegnat's interests "in expectancy or otherwise as an heir at law or as a beneficiary under any valid will and testament of Sarita K. East, Deceased." Marie Walker and Robert Putegnat are not beneficiaries under the 1960 will, but are beneficiaries under the 1948 will as well as remote heirs at law. Patrick Turcotte subsequently assigned 1/12th of his interest to Robert Turcotte.
On June 1, 1971, during the trial on the validity of the 1960 will, the trial court dismissed these same respondents from the case then pending on the ground that they were estopped as a matter of law from contesting the 1960 will. That action was reversed by the court of civil appeals and the cause remanded with instructions that the issues of respondents' interest must be tried separately and in advance of a trial on the validity of the will. 499 S.W.2d 705. This was done and, on June 26, 1975, the trial court entered a final judgment which dismissed respondents from the will contest.[2]
At the outset, since this is the second appeal of the case involving the issue of whether respondents are "persons interested," we must consider whether or not the first opinion of the court of civil appeals established the "law of the case." The doctrine of the law of the case is defined as that principle under which the initial determination of questions of law will be held to govern the case throughout its subsequent stages. Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.Tyler 1975, writ ref'd n. r. e.). Application of the doctrine is addressed to the discretion of this Court. Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066 (1896).
It should be recognized that neither the trial court nor the appellate court relied upon the doctrine as a basis for the judgment which is now before us. To the contrary, the second opinion of the court of civil appeals expressly stated that the record presented by the second appeal differs materially from that presented by the prior appeal. The court observed that the type and character of the pleadings, the allegations contained therein, and the theory of the attack differed in many respects in the two trials. The estoppel in the first trial court judgment was found as a matter of law without a full development of the facts. The case was remanded for such development and the second judgment was based on findings of fact by the trial court.
The first opinion held that the trial court's judgment was erroneous and required a remand for several different reasons. By refusing the application for writ of error with the notation of "no reversible error" the Supreme Court approved only the result reached by the court of civil appeals and not necessarily all the statements as to the law in the opinion. Fant v. Howell, 547 S.W.2d 261 (Tex.1977).
We conclude that the first opinion did not establish "the law of this case" on the issue of whether or not respondents are "persons interested."
After the trial on the interest of respondents, numerous findings of fact and conclusions of law were made by the trial court. Essentially, the trial court ruled that all of the respondents were estopped to contest the 1960 will because Edgar Turcotte, from whom the respondents received an interest in the East estate, would be estopped to contest the will in that he accepted and retained substantial benefits under the 1960 will. The court further held that Patrick Turcotte and Robert Turcotte were not "persons interested" in the estate by virtue of the assignments.
The court of civil appeals affirmed the ruling that respondents were estopped to attack the 1960 will in their capacities as devisees and legatees of Edgar Turcotte. We affirm that holding. It is a fundamental rule of law that a person cannot take any beneficial interest under a will and at *686 the same time retain or claim any interest, even if well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. Miller v. Miller, 149 Tex. 543, 235 S.W.2d 624 (1951); Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633 (Tex.Com.App. 1942, opinion adopted); Dunn v. Vinyard, 251 S.W. 1043 (Tex.Com.App.1923, judgmt adopted); Smith v. Negley, 304 S.W.2d 464 (Tex.Civ.App.Austin 1957, no writ hist.). Respondents attempt to avoid this rule of law by arguing that the court of civil appeals' holding is without support by proper pleading in the probate court, without support of credible evidence, and is contrary to law under the facts of this case.
Respondents contend that the pleadings in the probate court were not sufficient to raise the issue of estoppel by acceptance of benefits in the district court since not all elements of estoppel, specifically acceptance with knowledge, were pled. It is settled that on appeal to the district court from probate matters which have had their origin in the county court, the jurisdiction of the district court is appellate only and, therefore, the issues which are tried de novo in the district court must be confined to issues raised by the pleadings and the evidence in the county court. Holliday v. Smith, 422 S.W.2d 791, 795 (Tex.Civ.App. Corpus Christi 1967, writ ref'd n. r. e.); Olds v. Traylor, 180 S.W.2d 511, 518 (Tex. Civ.App.Waco 1944, writ ref'd). As pointed out by the court of civil appeals, the issue in both the county and district courts in this case was whether respondents were estopped from asserting their interest in the East estate. The same ground of estoppelacceptance of benefitswas pled in both courts. The pleadings in the district court which were amended to allege that the respondents were estopped because Edgar Turcotte had accepted benefits under the will with knowledge of his rights did not therefore inject a new issue into the proceedings or even enlarge the ground of estoppel raised in the probate court.
Respondents further assert there was no evidence that, at the time Edgar Turcotte accepted benefits under the will, he knew or should have known that the will contest would be filed by others, and that such knowledge is a necessary element of estoppel. Whether or not Edgar Turcotte had knowledge of all the facts and of all his rights at the moment he accepted the benefits is immaterial to a determination that he, by his acts and conduct after acceptance, became estopped to contest the will. Clearly, there is more than a scintilla of evidence to support the finding of the trial court that Edgar Turcotte did take many of the substantial benefits to which he was entitled under the 1960 will, and that he never revoked, or intended to revoke, his acceptance. He qualified under the will as one of the independent executors of the estate of Mrs. East and performed numerous duties as such until his death on March 18, 1963. He never contested the will. To the contrary, as executor, he defended the probate of the will in court. He accepted his share of the 43,000-acre San Pablo Ranch and he partitioned same, together with the cattle and personal property thereon, with his sister, Stella T. Lytton. He made improvements on this ranch and operated it until his death. In all, he accepted and took possession of approximately $1,300,000 worth of benefits under the 1960 will. He was advised by an attorney that his acceptance under the 1960 will would preclude any claim by him for benefits under the 1948 will. He never returned or tendered a return of those properties during his lifetime. Respondents are still in possession of these properties and the income therefrom.
Respondents also assert that they are not estopped because the will contest was initiated by people other than themselves. They urge that since a will contest is a proceeding in rem, the adjudication of property rights in the contest could affect the rights of the Turcottes. It is therefore argued that the personal estoppel against Edgar Turcotte and his privies should be precluded as a matter of law because to bar respondents from participating as contestants *687 lacks mutuality, is prejudicial and is a denial of due process of law. We hold that the filing of a will contest by others cannot be deemed to revive the respondents' relinquished right to contest the 1960 will. Furthermore, now that all contestants of the 1960 will except the respondents have settled and no longer challenge its validity, the respondents' contentions in this vein are moot.
We therefore hold that there are pleadings and evidence to support the finding that Edgar Turcotte, with full requisite knowledge, elected to and did take the substantial benefits to which he was entitled under the 1960 will, and that this election was ratified by him until his death. This election and ratification is binding upon respondents in their capacity as heirs, legatees, or personal representatives of Edgar Turcotte, deceased. Wells v. Petree, 39 Tex. 419 (1873); Lancaster v. Burris, 352 S.W.2d 136 (Tex.Civ.App.San Antonio 1961, no writ hist.); Cunningham v. Townsend, 291 S.W.2d 438 (Tex.Civ.App.Eastland 1956, writ ref'd n. r. e.). The court of civil appeals did not err in holding that respondents did not have such an interest in these capacities to contest the 1960 will of Mrs. East.
Respondents Patrick Turcotte and Robert Turcotte also claim to be interested persons to contest the 1960 will by virtue of the assignments purchased from Robert C. Putegnat and his sister, Marie Walker, beneficiaries under the 1948 will and heirs at law of Mrs. East. The court of civil appeals reversed the trial court's finding that the assignments were invalid and rendered judgment holding Patrick and Robert Turcotte to be interested persons.
Petitioners do not question the established rule in this State that the heirs, devisees and legatees of a decedent may validly assign all or any part of their interests in a decedent's estate. Morris v. Halbert, 36 Tex. 19 (1871); Geraghty v. Randals, 224 S.W.2d 327 (Tex.Civ.App.Waco 1949, no writ); 61 Tex.Jur.2d Wills, § 324. Neither do they dispute the rule that assignees of an heir at law have such interest in testator's will which enables them to contest its validity. Tex.Prob.Code Ann. Sec. 3(r) (1956); Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1928, judgmt adopted). Petitioners do urge, however, that under the facts and circumstances in this case Patrick and Robert Turcotte should not be permitted to use these assignments to gain standing as "persons interested" to contest the 1960 will of Mrs. East.
The record fairly supports the conclusion that the assignments were acquired by Patrick A. Turcotte for the express purpose of acquiring an interest in the East estate which would give him standing to maintain the will contest should it be found that Edgar Turcotte and those claiming through him were estopped. This plan was undertaken after Patrick Turcotte had been advised by several attorneys that the probable estoppel of Edgar Turcotte would present at least a serious question to his intervention in the will contest. Patrick Turcotte commenced a search for an heir at law of Mrs. East or a beneficiary of the 1948 will who was not a beneficiary of the 1960 will. He learned the Putegnat family had been bequeathed $20,000 in the 1948 will and that Robert Putegnat and Marie Walker are each entitled to 1/3rd of their father's 1/6th interest in this bequest. Patrick Turcotte first offered to furnish an attorney to Robert Putegnat for a five percent share in his interest, but after learning that Putegnat already was represented by an attorney, Patrick undertook to purchase an interest in Putegnat's claim. Putegnat accepted Patrick's offer of $1,000 for a five percent share in Putegnat's claim. Putegnat also agreed to try to purchase for Patrick similar interests from other heirs at law for a commission of $100. Accordingly, Putegnat contacted his sister, Marie Walker, and her husband who agreed to assign Patrick a five percent interest in her claim for $1000. About a month later, Putegnat and Marie Walker contacted Patrick Turcotte and each assigned him an additional five percent interest for $1000 each. Putegnat was paid $400 in total commissions by Patrick for these four assignments.
*688 Although the assignments were taken in the name of Patrick Turcotte, they were paid for with checks drawn on the Edgar Turcotte Estate Trust Account. It is reasonable to assume that Patrick intended, at one time at least, that these assignments would be owned jointly by the heirs of Edgar Turcotte in that he voluntarily assigned Robert Turcotte a 1/12th interest. Since the interests purchased by Patrick Turcotte for over $4000 would be worth only about $220 if the 1948 will is probated, the logical conclusion to be drawn is that these interests were acquired for the purpose of securing standing to maintain a will contest.
We agree with the holding of the court of civil appeals that the assignments to Patrick Turcotte are not null and void by reason of the barratry statute, violations of the Cannons of Ethics of the State Bar of Texas, or any illegal conduct on his part. Patrick's offer to represent Putegnat was not pressed after he learned that Putegnat already had an attorney. Instead, negotiations were had leading to the purchase by Patrick Turcotte of the four assignments.
Therefore, the decisive question presented narrows to whether or not Patrick and Robert Turcotte, although personally estopped from contesting the 1960 will as beneficiaries of their father, may "unestop" themselves by purchasing a ten percent interest in the claims of two remote heirs of Mrs. East, claims which are inconsistent with and would defeat the interest already accepted by the Turcottes through their father. We have been unable to find a Texas case which has squarely considered this point. The court of civil appeals held that the assignees may do so and cited the following authorities in support of this holding: Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1928, judgmt adopted); Abrams v. Ross' Estate, 250 S.W. 1019 (Tex. Com.App.1923, judgmt adopted); 23 Am. Jur.2d, Descent and Distribution, § 36 (1965). We do not find any of these authorities as controlling the disposition of this case.
The question before the court in Dickson, supra, was whether the right of a deceased who occupied the position of a "person interested" which would have entitled him to contest the probate of a will passed by the terms of his will or died with him. It was held that the right of action is assignable and is the subject of conveyance, and that a "person interested" means anyone who has an interest in the subject matter of the proceeding. The court did not consider or speak to the question of whether such party could assert such right when it would be inconsistent with a position the party had previously elected to adopt under a will.
In Abrams, supra, the contestants asserted alternate interests in the estate by claiming under the purchaser of the land in controversy at an execution sale and also under a conveyance from the grandson of testatrix. It was held that both of these interests would be affected by the probate of the will and therefore contestants were "persons interested" and entitled to maintain the contest under either claim. The court held that contestants had a right to plead both their titles in the alternative and, if either title proved to be an interest in the estate of testatrix, they were entitled to contest such probate. The court neither considered nor spoke to the question of the effect of an estoppel as a bar to one of the titles.
The final authority cited by the court of civil appeals is a partial quote from 23 Am.Jur.2d, supra, as follows:
"... Estoppels, where operating against the ancestor, do not operate against his heirs as to property not inherited from the ancestor, but acquired from an independent source. Hence an heir is not bound by such an estoppel with respect to property taken by purchase, or devise, or inheritance, from one other than the particular ancestor."
This sentence relies on five cases, none of which are Texas cases. Three, French v. McMillion, 79 W. Va. 639, 91 S.E. 538 (1917); Foote v. Clark, 102 Mo. 394, 14 S.W. 981 (1890), and Russ v. Alpaugh, 118 Mass. 369 (1875), are very similar. In French the *689 father of the plaintiff conveyed, by warranty deed, the land he lived on and apparently owned. The land was actually owned by the grandmother of the plaintiff. The plaintiff claimed title alternatively as the heir of the father and as the heir of the grandmother. The court found that the same estoppel or warranty which would have prevented the father from claiming title to the land would also operate to prevent the plaintiff from claiming title as the heir of the father. However, the court went on to find that title was never vested in the father since he predeceased the grandmother, and that upon the grandmother's death, title passed directly to the plaintiff. The estoppel which prevented him from claiming title through the father was held not to operate to also prevent him from claiming through the grandmother.
Similarly, in Russ and Foote the estoppel which would have prevented the children from claiming title as heirs of one parent who had apparently conveyed away the land did not prevent them from acquiring the land as heirs of the other parent who, at death, actually had title. In Oliver v. Piatt, 3 How. 333, 11 L. Ed. 622 (1844), and McSwain v. Griffin, 218 Miss. 517, 67 So. 2d 479 (1953), the heirs stood in the shoes of a decedent who would have been estopped from claiming title to land, but were held not to also be estopped from acquiring valid title by purchasing the land in question.
We do not believe that the quoted rule controls the situation before us in that none of the cases cited in support thereof involved a will contest. There was no heir before the court in any of those cases who was a successor in interest standing in the shoes of his ancestor to any rights or properties which were inconsistent with, or which would defeat in any manner, the property right which the heir was then claiming.
The New York case of De Witt v. Jayne, 222 A.D. 674, 225 N.Y.S. 97 (1927), supports petitioners' position on this point. It was there held that plaintiff and the other legatees under the will of plaintiff's sister, having accepted their legacies, were personally estopped from later claiming any interest in the estate of the deceased hostile to the will. Furthermore, plaintiff was held to be estopped for the same reason from asserting the claims assigned to her by the other beneficiaries under the will.
Although we have found no Texas case which considered the question of "unestoppel" in regards to a will contest, Texas courts have rejected the somewhat analogous arguments that a person may circumvent his estoppel by acquiring a chain of title unrelated to the estoppel. See Adams v. Duncan, 147 Tex. 332, 215 S.W.2d 599 (1948); Doty v. Barnard, 92 Tex. 104, 47 S.W. 712 (1898); Waco Bridge Co. v. City of Waco, 85 Tex. 320, 20 S.W. 137 (1892).
The question before us is not, as in Abrams, whether or not interests may be alternatively asserted as grounds for contesting a will; it is instead whether or not a party who is estopped by equity from contesting by way of one interest may avoid that estoppel by acquiring another interest which is not estopped. No court has so held. To so hold would make a mockery of the equitable rule of election in will contests. The rule of election and estoppel in will contests is based upon equity and public policy. It is designed to prevent one from embracing a beneficial interest devised to him under a will, and then later asserting a challenge of the will inconsistent with the acceptance of benefits.
Here respondents Patrick and Robert Turcotte are seeking to assert the relatively minute interests assigned to them in order to contest the 1960 will which their father ratified by his election. Yet their admitted purpose in invalidating such will is to recover through their father since respondents are neither beneficiaries under the 1948 will nor heirs at law.[3] In the meantime respondents have enjoyed, and continue to enjoy, the fruits of their father's *690 election in that they remain in possession of the property taken by Edgar Turcotte under the 1960 will, and have earned almost one million dollars from same. They admit that over $150,000 from the estate bank account has been spent on this contest of the 1960 will. True, respondents have pleaded that they are willing to tender back the property received by them should the 1960 will be invalidated. However, even assuming that a valid tender could be made after these many years of unqualified possession, the election to take or not to take is not the respondents' to make; it was made long ago by Edgar Turcotte. Respondents cannot now repudiate that election.
The Putegnat heirs, including Robert Putegnat and Marie Walker, as well as all other contestants, have now settled their claims and no longer desire to contest the 1960 will. Putegnat and Marie Walker have offered to pay Patrick and Robert Turcotte ten percent of the interest to be received by Putegnat and Marie Walker.
We conclude that it would be inequitable and unjust to allow Patrick and Robert Turcotte to assert standing as interested parties by virtue of the minute interests acquired through the assignments purchased for the purpose of defeating the will under which their father elected to take. Furthermore, to permit standing under such circumstances is against public policy in that it would breed litigation and deprive the real parties at interest of their right to compromise and settle their controversies.
Therefore, the court of civil appeals erred in holding that Patrick and Robert Turcotte are persons interested in the Sarita K. East estate and, as such, entitled to contest the 1960 will. The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.
POPE, J., dissents in an opinion in which CHADICK, J., joins.
POPE, Justice, dissenting.
I respectfully dissent. I do not agree with that part of this court's opinion which denies standing to Patrick and Robert Turcotte in their attack upon Mrs. Sarita East's 1960 will and its codicils. In my judgment the Turcottes have the same standing as their assignors, Marie Walker and Robert C. Putegnat. Walker and Putegnat are the her is of Mrs. East, and they also have an interest as devisees under Mrs. East's earlier 1948 will, which might become operative if the 1960 will were invalidated. The majority recognizes that Marie Walker and Robert Putegnat had an interest and standing, but in some mysterious manner, a part of their interest and standing vanished by their assignment to the Turcottes.
Mrs. Sarita K. East executed a will in 1948, and in 1960 she made a new will. A number of codicils were later added to the 1960 will. After Mrs. East died in 1961, some 120 persons set about to prove that the 1960 will and the codicils were void because Christopher Gregory, also known as Brother Leo, had overreached Mrs. East by undue influence and fraud. That contest was tried in the probate court of Kenedy County which rendered a judgment that the 1960 will was void and which admitted the 1948 will to probate. There was an appeal to the district court. See Alice National Bank v. Corpus Christi Bank & Trust, 431 S.W.2d 611 (Tex.Civ.App.Corpus Christi 1968), aff'd, 444 S.W.2d 632 (Tex.1969).
All of the parties who originally urged the invalidity of the 1960 will have now, we are told, made settlements in the vast estateall, that is, except Patrick and Robert Turcotte. The majority opinion says that the Turcottes should not now be permitted to assert their rights or test the validity of the 1960 will, because it would be "inequitable and unjust to allow Patrick and Robert Turcotte to assert standing as interested parties." The assignments that they own have not been set aside or voided by any legal proceeding and the majority opinion confirms their validity. In my opinion, the Turcottes have standing, and it is inequitable and unjust to deny them their day in court to make proof that Mrs. East was overreached when she made the 1960 will.
The Turcottes assert their standing on two independent bases, either of which entitles *691 them to contest the 1960 will. They first assert that they are the sons of Edgar Turcotte who was a beneficiary under Mrs. East's 1960 will. Edgar Turcotte received substantial benefits under the 1960 will, but the Turcottes say that he did so without full knowledge of the undue influence and fraud of Father Leo, and also that Edgar Turcotte did not know that he was granted even greater benefits under the earlier 1948 will and its codicil. Edgar Turcotte died and his two sons then received by devise a part of what Edgar had received under Mrs. East's 1960 will. Patrick and Robert Turcotte urge that in 1973 when this same issue was before the court of civil appeals that the court ruled that Edgar Turcotte was not estopped unless there were pleadings and proof that he received the benefits of the 1960 will with knowledge of the facts. 499 S.W.2d 705, 712-15 (Tex.Civ.App.Corpus Christi 1973, writ ref'd n.r.e.). The court of civil appeals at that time ruled:
There is neither pleading nor evidence to support the findings that Edgar Turcotte, at the time he accepted benefits under the contested will, had full knowledge of the lack of testamentary capacity of Mrs. East when she executed the will.
Patrick and Robert advance a second basis to establish their standing to attack the 1960 will. They own an interest entirely independent of their claims as children of Edgar Turcotte, one of the beneficiaries of the 1960 will. Robert C. Putegnat and his sister Marie Walker were second cousins of Mrs. East and as such were her heirs at law. They were also named as beneficiaries by a codicil to Mrs. East's 1948 will. They were not named as beneficiaries under the 1960 will. Putegnat and Walker contested the 1960 will, and there has at no time been any pleading or contention that those parties lacked standing to sue to strike down the 1960 will.
Putegnat and Walker sold a part of their valid and nonestopped claim to Patrick and Robert Turcotte by transactions which the majority opinion upholds as valid. In other words, Patrick and Robert Turcotte lawfully bought the interests of Putegnat and Walker and the majority upholds the lawfulness of the purchase. We thus have the situation in which Patrick and Robert Turcotte bought an unestopped interest; however, this court denied them the right to assert that unestopped interest.
Patrick and Robert Turcottes' standing, provided they factually proved their acquisition of the interests, was decided in the earlier appeal of this case. Patrick and Robert Turcotte rely upon these express holdings by the court of civil appeals on the former appeal about standing: Patrick Turcotte had the legal right to purchase from other heirs an interest in Mrs. East's estate; Patrick and Robert Turcotte had the right to plead their interest based on (a) what they acquired by devise under the will of their father Edgar Turcotte, and (b) that which they purchased from Marie Walker; if either title so pleaded was proved, they were entitled to prosecute the will contest; an estoppel against Robert Turcotte by reason of his devise under his father's will does not cut off his interest acquired by purchase from Marie Walker; neither Patrick nor Robert Turcotte were personally estopped from contesting Mrs. East's will, because they were not named as beneficiaries in her will, "They having accepted no benefits under Mrs. East's will...." Turcotte v. Trevino, 499 S.W.2d 705, 721-22.
The majority now rejects all of those earlier holdings, but writes at length to excuse and justify its disregard of the earlier 1973 opinion. The point before the court of civil appeals in 1973 and this court on application for writ of error in that former case, was whether the Turcottes had standing as the assignee of a part of an unestopped claim of Marie Walker. It is correct that the court of civil appeals recognized differences in the records of the two appeals of these same parties. But the court of civil appeals, writing on this second appeal, recognized the identity of the parties and problem, and it applied the same rule in the second appeal that it did in the first one. Whatever may be the other differences in this and the earlier records on appeal, the records are the same concerning *692 the right of the Turcottes to assert rights under their valid assignments.
Lest there be any question of the sameness of the issue and parties in the earlier[1] and the present[2] appeal, we should examine the verbatim holdings in the two opinions written by the same judge of the same court about the same point. Five years ago the court of civil appeals relied upon Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App. *693 1928, judgmt adopted); Abrams v. Ross' Estate, 250 S.W. 1019 (Tex.Com.App.1923, judgmt adopted), and 23 Am.Jur.2d, Descent and Distribution, § 36 (1965). The court of civil appeals in this case believed that it was applying the law of the case, because it cited the 1973 case of Turcotte v. Trevino.
Patrick and Robert Turcotte have now done precisely what they were told they needed to do by the 1973 remand of this case. They returned to the trial court and made the factual proof of their standing. They now learn that the retrial upon the remand was an empty and useless effort. As stated by the majority opinion, this court has the power to ignore the law of the case, but it is unfortunate that we have chosen to do so after so long a delay which we ordered, and after the waste of so much time and money upon a retrial that really should not have been conducted. The majority has found no better reasons than those urged in the former appeal for its change of mind, and it cites no Texas authority for its rule that, in this instance, it would be "inequitable and unjust" to allow Patrick and Robert Turcotte to conduct a trial which would determine which will in truth was Mrs. East's last will. That issue will now never be determined. In my opinion this is a textbook example for the application of the law of the case. Kendall & Harcourt v. Mather, 48 Tex. 585, 597-98 (1878); Wood v. Wheeler, 9 Tex. 127 (1852).
I agree with the opinion of the court of civil appeals, and I would refuse the writ, no reversible error, and permit Patrick and Robert Turcotte, who have a valid assignment from unestopped heirs and devisees, to make their proof about the testamentary capacity of Mrs. East and on the issues of fraud, undue influence and duress. I do not believe that the property rights which Patrick and Robert purchased should be deemed expendable.
CHADICK, J., joins in this dissent.
NOTES
[1] There have been nine previous appeals involving this estate: Kimmel v. Lytton, 371 S.W.2d 927 (Tex.Civ.App.Waco 1963, writ ref'd); Alice National Bank v. Edwards, 383 S.W.2d 482 (Tex.Civ.App.Corpus Christi 1964, writ ref'd n. r. e.); Turcotte v. Alice National Bank, 402 S.W.2d 894 (Tex.1966); Alice National Bank v. Edwards, 408 S.W.2d 307 (Tex.Civ.App.Corpus Christi 1966, no writ hist.); Gregory v. Lytton, 422 S.W.2d 586 (Tex. Civ.App.San Antonio 1967, writ ref'd n. r. e.); Corpus Christi Bank and Trust v. Alice National Bank, 444 S.W.2d 632 (Tex.1969); Alice National Bank v. Trevino, 445 S.W.2d 237 (Tex. Civ.App.Beaumont 1969, no writ hist.); Turcotte v. Trevino, 467 S.W.2d 573 (Tex.Civ.App. Corpus Christi 1971, writ ref'd n. r. e.); Turcotte v. Trevino, 499 S.W.2d 705 (Tex.Civ.App. Corpus Christi 1973, writ ref'd n. r. e.).
[2] Since there were no other contestants in the case, the trial court entered judgment dismissing the will contest.
[3] Respondents prayed that the 1960 will be held for naught and that the 1948 will be probated.
[1] Turcotte v. Trevino, 499 S.W.2d 705, 721-22 (Tex.Civ.App.-Corpus Christi 1973, writ ref'd n. r. e.):
It is without dispute in the record that Marie Walker is an heir at law of Mrs. East as well as one of the beneficiaries entitled to share in a $20,000.00 legacy bequeathed by the 1948 will. As such, she holds the necessary justiciable interest in the East estate to maintain the will contest, and did, in fact, do so.
It is settled law in this State that the heirs, devises and legatees of a decedent may validly assign all or any part of their rights and interests in a decedent's estate to another person. Morris v. Halbert, 36 Tex. 19 (1891) [sic]; Geraghty v. Randals, 224 S.W.2d 327 (Tex. Civ.App.Waco 1949, n. w. h.); 20 Tex. Jur.2d, Descent and Distribution, § 33, p. 116. An assignee of an heir at law or of a devisee or legatee of a decedent has a right to prosecute a will contest to set aside a will which prejudicially affects the rights or properties transferred by the assignment. Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1938) [sic].
The rule is set forth in 23 Am.Jur.2d, Descent and Distribution, § 36 p. 782, as follows:
"... Estoppels, where operating against the ancestor, do not operate against his heir as to property not inherited from the ancestor but acquired from an independent source. Hence, [sic] an heir is not bound by such an estoppel with respect to property taken by purchase, or devise, or inheritance [sic] from one other than the particular ancestor".
In Abrams v. Ross' Estate, 250 S.W. 1019 (Tex.Com.App.1923), the will contestant had acquired two rights, through different sources, to maintain a will contest. He sued on the basis of both rights. The court held that he was entitled to maintain the will contest if either right be valid, saying:
"... They were not required to rely upon one or the other. If either title pleaded showed in them any interest in the estate of Sarah Ross, in the absence of the probate of her will, they were entitled to contest such probate...."
[2] Turcotte v. Trevino, 544 S.W.2d 463, 474 (Tex.Civ.App.Corpus Christi 1976):
It is settled law in this State that the heirs, devisees and legatees of a decedent may validly assign all or any part of their rights and interests in a decedent's estate to another person. Morris v. Halbert, 36 Tex. 19 (1871); Geraghty v. Randals, 224 S.W.2d 327 (Tex.Civ.App.-Waco 1949, no writ); 20 Tex.Jur.2d, Descent and Distribution, § 33. An assignee of an heir at law, devisee or legatee of a decedent has a legal right to maintain a will contest to set aside a will which prejudicially affects the properties assigned or conveyed to him by the assignment under which he claims. Dickson v. Dickson, 5 S.W.2d 744 (Tex.Comm'n App.1928).
* * * * * *
The rule is set forth in 23 Am.Jur.2d, Descent and Distribution, § 36, p. 782, as follows:
"... Estoppels, where operating against the ancestor, do not operate against his heir as to property not inherited from the ancestor, [sic] but acquired from an independent source. Hence an heir is not bound by such an estoppel with respect to property taken by purchase, or devise, or inheritance, from one other than the particular ancestor."
A will contestant who as acuited rights through different sources to property owned by the decedent and disposed of by will may file a suit to contest a will. Such contestant is entitled to maintain the will contest if either right be valid, and he is not required to rely upon one or the other. Abrams v. Ross' Estate, 250 S.W. 1019 (Tex.Comm'n App.1923); Turcotte v. Trevino, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1432142/ | 952 F. Supp. 325 (1997)
Joseph L. RODGERS, Jr., Plaintiff,
v.
NORTHWESTERN MUTUAL LIFE INSURANCE CO., Defendant.
Civil Action No. 96-00107-C.
United States District Court, W.D. Virginia, Charlottesville Division.
January 30, 1997.
*326 Dexter Brock Green, Jones & Green, Charlottesville, VA, for Plaintiff.
Robert Craig Wood, Patricia Chupkovich Karppi, McGuire, Woods, Battle & Boothe, Charlottesville, VA, for Defendant.
MEMORANDUM OPINION
MICHAEL, Senior District Judge.
For the second time in a three month period, plaintiff challenges the removal of this case from the state court and seeks to remand this case back from whence it came. In Rodgers v. Northwestern Mutual Life Insurance Co., 939 F. Supp. 1254 (W.D.Va.1996) ("Rodgers I"), this court held that defendant could not rely on the plaintiff's initial motion for judgment in its effort to trigger the removal provisions contained in the second paragraph of 28 U.S.C. § 1446(b). Defendant has now removed this case to federal court on the basis of (1) an October 7, 1996 letter from plaintiff's counsel to defendant's counsel proposing a settlement and stating that the accrued damages as of the date of the letter totaled approximately $75,000; and (2) Defendant's First Request for Admissions to Plaintiff. Plaintiff contends that removal on these bases is improper and that remand is appropriate.
Under 28 U.S.C. § 1446(b),
[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
(emphasis added). Although this court can find no fault with its conclusion that removal in Rodgers I was improper because an original pleading cannot trigger the removal provisions contained in the second paragraph of § 1446(b), further consideration of § 1446(b) persuades this court that removal may be appropriate in a case where the damages accrue so as to exceed the minimum necessary to trigger federal court jurisdiction, so long as the party seeking removal complies with the requirements of § 1446(b).
When defendant initially attempted to remove the instant case to federal court in August 1996, this court quoted Strickland Transportation Co. v. Navajo Freight Lines, Inc., 199 F. Supp. 108 (N.D.Tex.1961), for the proposition that
[w]here an action in state court seeks recovery for a specific sum that is less than the jurisdictional minimum and involves a prayer for additional damages accruing up to the time of judgment, this court is of the opinion that the suit must be removed, if at all, within the 20 days from the time the action is filed (and the defendant is served) or subsequent removal will not be timely. The mere passage of time is not sufficient for the exception under the second paragraph of Section 1446(b) to become applicable.
See Rodgers I, 939 F.Supp. at 1255 (quoting Strickland, 199 F.Supp. at 111). The court in Strickland so concluded, and this court agrees, that "[t]o hold otherwise would encourage a defendant to delay intentionally the progress of the state action so that removal might eventually be perfected." Strickland, 199 F.Supp. at 111. That notwithstanding, nowhere does § 1446(b) state that a defendant may not remove a case to federal court if it "has become removable" because the jurisdictional limit has been exceeded during the course of litigation. Instead, the cases are clear that "[t]he controlling facts and circumstances to support jurisdiction are those which exist at the time the suit is filed in this court or on the date it is removed from the state court to the federal court." Anderson v. St. Paul *327 Mercury Indem. Co., 119 F. Supp. 222, 223 (W.D.La.1954).[1] Although an unscrupulous defendant might attempt to delay the state proceedings so as to remove the case to federal court once the jurisdictional minimum has been achieved, this court cannot contort the plain language of the statute to prevent such abuses.[2] Though this court may wish to limit the removal of cases from state courts in instances such as this, Congress has nonetheless spoken and its language must be respected.[3]
Plaintiff argues that a ruling in favor of defendant will conflict with the decisions in Beaman v. Pacific Mutual Life Insurance Co., 369 F.2d 653 (4th Cir.1966), and Carroll v. Mutual of Omaha Insurance Co., 354 F. Supp. 1260 (W.D.Va.1973), which plaintiff believes hold that the jurisdictional amount in controversy is determined as of the date the suit is filed. In Beaman, the Fourth Circuit held that "[t]he decided cases ... are clear that in a suit like the case at bar, the measure of recovery and, hence, the amount in controversy, is only the aggregate value of past benefits allegedly wrongly withheld." Beaman, 369 F.2d at 655. Although the aggregate value of benefits allegedly wrongly withheld in the instant case were less than the jurisdictional minimum at the time the case was filed, the aggregate value subsequently has increased to exceed the jurisdictional minimum. Plaintiff's reliance on Beaman and Carroll is misplaced in that those cases were instances where the plaintiffs sought to meet the jurisdictional minimum based on future payments that had not yet accrued rather than on "the aggregate value of past benefits wrongly withheld." In the instant case, plaintiff's claim for past benefits now clearly exceeds the jurisdictional minimum, so that removal is appropriate if permitted by § 1446(b).
Although this court concludes that removal is possible if the aggregate value of a plaintiff's claim increases to the appropriate amount during the course of the litigation, defendant still must comply with the requirements of § 1446(b). Initially, the court notes in passing that the settlement letter at issue in the instant case satisfies the requirement that the paper be the product of a voluntary act on the part of the plaintiff. See Potter v. Carvel Stores of New York, Inc., 203 F. Supp. 462, 467 (D.Md.1962), (noting that "[t]he authorities are uniform that ... the `amended pleading, motion, order or other paper' must emanate from either the voluntary act of the plaintiff in the state court, or other acts or events not the product of the removing defendant's activity"), aff'd, 314 F.2d 45 (4th Cir.1963). An offer of compromise clearly is an exercise of discretion on the part of a plaintiff made in an attempt to effect a settlement of his claim, and thus is a voluntary act on the part of a plaintiff. Nevertheless, notwithstanding the voluntary nature of the settlement letter, two issues remain before the court: Has defendant presented a document that satisfies the requirement of an "other paper" and does defendant's actual knowledge that the jurisdictional limit had been exceeded prior to receipt of the document bar invocation of § 1446(b)?
As to the first question, in light of the Fourth Circuit's decision in Yarnevic v. Brink's, Inc., 102 F.3d 753 (4th Cir.1996), this court has little hesitation in finding that the plaintiff's offer of settlement constitutes an "other paper" within the meaning of § 1446(b). Although other courts have required that the document be part of the state *328 court record, see, e.g., Bonnell v. Seaboard Air Line R.R. Co., 202 F. Supp. 53, 55 (N.D.Fla.1962) (holding that under § 1446(b), "the term `other paper' meant a paper which was filed of record"); Putterman v. Daveler, 169 F. Supp. 125, 129 (D.Del.1958) (finding that "the phrase `or other paper' ... means some other paper appearing in the record of the Court"), or at a minimum be "`generated within the state court litigation,'" Pack v. AC & S, Inc., 838 F. Supp. 1099, 1101 (D.Md. 1993) (quoting Zbranek v. Hofheinz, 727 F. Supp. 324, 326 (E.D.Tex.1989)); see also Johansen v. Employee Benefit Claims, Inc., 668 F. Supp. 1294, 1296 (D.Minn.1987) (noting that "every court which has faced the issue ... has construed the phrase `or other paper' as referring solely to documents generated within the state court litigation itself"), the Fourth Circuit in Yarnevic concluded that "the `motion, order or other paper' [need not] be part of the state court record." Yarnevic, 102 F.3d at 755. Rather, "[t]he `motion, order or other paper' requirement is broad enough to include any information received by the defendant, `whether communicated in a formal or informal manner.'" Id. (quoting Broderick v. Dellasandro, 859 F. Supp. 176, 178 (E.D.Pa.1994) (emphasis added)). Accordingly, plaintiff's settlement letter satisfies the Fourth Circuit's requirement for an other paper.[4]
The next issue before the court is whether defendant's actual knowledge that the jurisdictional limit would eventually accrue prevents defendant from removing pursuant to § 1446(b). Plaintiff argues that § 1446(b) requires that the other paper be one "from which it may first be ascertained that the case ... has become removable." Plaintiff interprets the word "first" to preclude removal in this case because defendant already had knowledge as to when the amount in controversy would exceed the jurisdictional minimum.[5] This court has been unable to locate any case that addresses this issue directly, but several opinions suggest that plaintiff's argument is without merit.
While it can be argued that both plaintiff and defendant could have "first ... ascertained" from the complaint itself that the jurisdictional amount would have been reached through the running of the monthly payments required under the contract, the "aggregate amount" at issue would only reach the jurisdictional level through the passage of time. No one could know that some exigent circumstance, e.g., the death of a beneficiary, or some other reason, would not prevent the amount from accruing to reach the jurisdictional level. Though knowing how the monthly sum might accrue, neither party could with the requisite certainty "first ascertain" the jurisdictional amount had accrued until that time had passed such that sufficient damages had, in fact, accrued.
"The essential purpose of § 1446(b) is to commence the running of the 30-day period once the defendant receives the requisite written notice that the case has become removable." Sunburst Bank v. Summit Acceptance Corp., 878 F. Supp. 77, 82 (S.D.Miss. 1995) (emphasis added). Even though a defendant may believe or have actual knowledge that the amount in controversy is sufficient to support removal to federal court, he must still wait until he has obtained written notice from the plaintiff as to the amount of damages sought. Accordingly, in Bonnell v. Seaboard Air Line Railroad Co., 202 F. Supp. 53 (N.D.Fla.1962), the court held that although a written settlement offer and a deposition that specified the amount in controversy could not constitute an other paper so as to trigger § 1446(b), a subsequent request for admissions would permit removal. Similarly, in Smith v. Bally's Holiday, 843 F. Supp. 1451, 1456 n. 7 (N.D.Ga.1994), the court noted that even though it was remanding *329 the case because defendant had failed to satisfy the other paper requirement, a subsequent interrogatory inquiring as to the amount in controversy could support removal to federal court. The import of these decisions is that a case such as the one at bar does not "first" become removable until two requirements are fulfilled actual satisfaction of the jurisdictional minimum and written notice that the amount in controversy justifies the exercise of federal jurisdiction. In the instant case, even though defendant may have been able to calculate with some uncertainty the accrued damages to conclude that the jurisdictional minimum had been exceeded, the case was not "first" removable until defendant had written notice that plaintiff sought damages in excess of $50,000.
Plaintiff's October 7, 1996 letter qualifies as an "other paper" so as to trigger the removal provisions of § 1446(b). His claim now exceeds the minimum required for a federal court to exercise jurisdiction. Because defendant filed its for petition within thirty days of receiving plaintiff's letter, defendant's removal of its case was timely and complied with the mandates § 1446(b). Removal to federal court is thus proper, and plaintiff's motion for remand will be denied.
NOTES
[1] In fact, a review of Strickland reveals that the language that this court quoted in Rodgers I, see supra, is best characterized as an alternate holding, the initial justification for remand having been that the jurisdictional limit had not been met as of the date of removal. See Strickland, 199 F.Supp. at 109. As a result, to the extent that this court quoted Strickland in its prior opinion, it was for the limited purpose addressed in Rodgers I and has no bearing on the issue at bar.
[2] This court does not wish to suggest that such has occurred in the instant case; there is no evidence in the record to suggest that defendant has endeavored to delay these proceedings. The court merely notes that § 1446 is open to abuse by other defendants.
[3] This court takes some comfort in the fact that the removal provisions of the second paragraph of § 1446(b) may only be exercised within the first year after the filing of the case, but this provides little relief to the plaintiff who has filed in state court seeking prompt adjudication of his claim.
[4] Because this court concludes that plaintiff's October 7 letter is sufficient to trigger the removal provisions of § 1446(b), this court need not address the defendant's second basis for removal; namely, defendant's request for admissions. Suffice it to say, however, that an admission by a party constitutes an "other paper" within the meaning of § 1446(b). See Bonnell, 202 F.Supp. at 55.
[5] Because the disability payments that are allegedly due to plaintiff are accruing at a rate of $7500 per month, defendant had actual knowledge that the damages had exceeded the jurisdictional minimum well before it filed its second removal in the instant case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1851392/ | 231 B.R. 284 (1999)
In re Johnny (NMN) TUCKER, Debtor.
Bankruptcy No. 98-13861.
United States Bankruptcy Court, E.D. Tennessee, Southern Division.
February 5, 1999.
Kenneth C. Rannick, Chattanooga, TN, for debtor.
Mark D. Hackett, Lawrence, Lawrence & Gerbitz, Chattanooga, TN, for Aegis Finance.
MEMORANDUM
JOHN C. COOK, Bankruptcy Judge.
This chapter 13 case is before the court on an objection by the creditor, Aegis Auto Finance, Inc. ("Aegis"), to confirmation of the debtor's modified plan, a motion by the same creditor for relief from the stay, and an objection by the debtor to the claim filed by that creditor in this case. After a hearing and for the reasons that follow the court will sustain the objection to confirmation. A further hearing will be held on the creditor's motion for relief from stay and the debtor's objection to the creditor's claim.
These matters arise out of a previous chapter 13 case (No. 97-14347) filed by the debtor on July 31, 1997. Aegis was a secured creditor in that case and filed a claim for $20,055.48 which it contended was secured by a 1995 Ford Taurus automobile. This claim was filed on October 21, 1997, about a month after the meeting of the creditors was held on September 17, 1997. No representative *285 of Aegis attended the meeting of creditors, no objection to confirmation was filed by Aegis, and the plan proposed by the debtor was confirmed the following day on September 18, 1997. The debtor's plan provided that Aegis was to be paid as a secured creditor, but it stated the value of Aegis's security as being $1.00, then proposed to pay that $1.00 at the rate of $450 per month.
Within two months of confirmation, the debtor converted his chapter 13 case to a case under chapter 7. The debtor's trustee, most likely believing that the automobile in question was still fully subject to Aegis's security interest, abandoned the automobile and filed a report stating that the debtor's estate contained no assets over and above his exemptions. No distribution to creditors was made, the debtor received a discharge on February 19, 1998, and the case was closed.
Thereafter, Aegis, believing it still retained a valid security interest, repossessed the automobile. In order to forestall further collection action against this collateral, the debtor has filed a new chapter 13 case. He now takes the position that the automobile in question belongs to him as an unencumbered asset because Aegis's lien was stripped away in the preceding chapter 13. The record shows that the chapter 13 trustee actually paid $1.00 to Aegis according to the plan. In the debtor's view, this act paid the creditor one hundred percent of its allowed secured claim and thus extinguished any lien the creditor may have had. See, e.g., In re Johnson, 213 B.R. 552 (Bankr.N.D.Ill.1997) (debtor may obtain release of lien upon payment in full of the secured portion of his debt); In re Nicewonger, 192 B.R. 886 (Bankr. N.D.Ohio 1996) (same); In re Lee, 156 B.R. 628 (Bankr.D.Minn.1993) (same); In re Murry-Hudson, 147 B.R. 960 (Bankr.N.D.Cal. 1992) (same). If the debtor is correct in this regard, it means that the creditor's secured claim has been paid in full and its lien satisfied in the previous chapter 13 case. The conversion of the case to one under chapter 7 would have discharged all of the unsecured portion of the creditor's claim, and the out-come of this "chapter 20" would be that the debtor obtained an automobile worth approximately $20,000 for the payment of $1.00.
The statutory provision relied upon by the debtor to justify this result is 11 U.S.C. § 1327(a) which provides:
The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not the creditor has objected to, has accepted, or has rejected the plan.
The creditor, however, while admitting the binding effect of a confirmed plan, points out that the plan provision in question was ambiguous and misleading to the creditor in that it proposed to pay $1.00 at the rate of $450 per month, an absurdity if taken literally.[1]
Thus the debtor's plan can be looked at in two ways. First, it can be viewed as proposing that the value of the creditor's secured claim was actually $1.00, because the value of the 1995 Taurus automobile was actually only $1.00. The other part of the proposal to pay that $1.00 at the rate of $450 per month would then be viewed as an inexplicable error. The other way to view this plan provision, again looking at it in its entirety, is to see it as a statement by the debtor that he did not know, or had not yet determined, the real value of the creditor's security, although he agreed to pay whatever the secured claim was at the rate of $450 per month until paid in full. Under this reading, the $1.00 proposed value is not taken literally, and the $1.00 is recognized instead as a nominal figure used by the debtor to indicate that the security has some value as yet undetermined. This second reading seems the more reasonable because it deals logically with both terms of the debtor's proposal and does not require the assumption that one is an unintelligible mistake.
Indeed, this second view is almost certainly the one intended by the debtor himself, as is shown by his entries in Schedule D to his *286 proposed plan. Therein, he listed Aegis Consumer Finance as a secured creditor, valued the automobile in question at $19,438, valued the creditor's security at $14,637, and valued the unsecured portion of the creditor's claim at $4,801. On the same schedule, the debtor did not indicate that this claim was disputed in any way. Thus, the $1.00 assigned as value in the plan provision is most reasonably seen as a nominal $1.00 intended to represent some value, but not the value.
The use of the nominal $1.00 is well understood in legal circles. It is the legal equivalent of the mathematical "x" it stands for something else and is not intended to be taken literally.
"Nominal" means "being so small, slight, or negligible as scarcely to be entitled to the name: trifling, insignificant." Webster's Third New International Dictionary of the English Language Unabridged (1966), page 1534. "Hence a nominal payment is a token payment, bearing no relation to the real value of what is being paid for." The American Heritage Dictionary, Second College Edition (1985), page 845. "Nominal consideration" is "[o]ne bearing no relation to the real value of the contract or article. . . ." Black's Law Dictionary (6th ed.1990), page 307. "The courts, in referring to the term `nominal,' frequently use it interchangeably with the sum of one dollar or some other piddling amount; but the real yardstick in determining whether the option price is nominal or substantial would appear to hinge on whether that price bears a resemblance to the fair market price of the article." In re Universal Medical Services, Inc., 8 U.C.C. Rep. Serv. (West) 614, 1970 WL 12640 (Bankr.E.D.Pa.1970).
In re Winston, 181 B.R. 589, 592 (Bankr. N.D.Ala.1995). Thus, when a nominal value is used, it is understood that it has no relationship to the real value of a thing, and that is precisely the message sent by the debtor in this case.
Judge Lundin in his treatise, Chapter 13 Bankruptcy, accurately summarizes how a creditor's claims are bifurcated in a jurisdiction like ours where the bifurcation is part of the confirmation process.
Especially with respect to secured claims, to accomplish confirmation the debtor will make specific provision in the plan for the treatment of each "allowed" claim. This is necessary because the mathematics of the plan, feasibility of the plan, and determination of the various tests for confirmation of the plan cannot be undertaken unless the plan is reasonably specific with respect to the amount of each secured claim, the amount of the proposed payment to each secured claim holder, the interest rate that will be allowed, and so forth. A specific plan provision with respect to the treatment of a secured claim holder typically includes the debtor's proposal for how much of the creditor's claim will be treated as a secured claim under the plan. This almost always means a statement in the plan that values the creditor's collateral for purposes of confirmation.
The Bankruptcy rules require that each creditor be given notice that includes a copy of the plan or a summary of the plan. If the noticing is done properly, each secured creditor will have very precise information about the debtor's proposed treatment of the creditor's claims through the plan. If the proposed plan says that a creditor will be secured to a specified amount, unsecured for the balance of its claim, and will receive a stated monthly payment with a specified rate of interest, it is certainly a reasonable expectation that confirmation will bind creditors to the values, monthly payments, interest rates, and "allowed" amount of claims specified in the plan.
Keith M. Lundin, Chapter 13 Bankruptcy, 6-16 (1994) (footnotes omitted) (emphasis added). As may be seen from the above description, the efficient working of the bifurcation process depends on a certain level of specificity in the debtor's plan provisions. Thus, before a claim can truly be "provided for" in a plan within the meaning of either 11 U.S.C. § 1327(a) or 11 U.S.C. § 1328(a), the debtor must definitively value the secured portion of the claim and propose its satisfaction under the Code. This debtor's plan lacks the necessary specificity because it is facially ambiguous.
*287 When confirmation occurs, "[t]he provisions of a confirmed plan bind the debtor and each creditor. . . ." 11 U.S.C. § 1327(a). As has been shown, however, the instant plan does not contain a provision specific enough to bind the debtor and creditor, and confirming something so facially ambiguous adds nothing to the process, since the plan is merely adopted by the confirmation order. The result of this failure is that the creditor's claim was never really bifurcated under 11 U.S.C. § 506(a), and the confirmation, which was supposed to resolve the issues in the chapter 13 case, actually resolved nothing. At this late date the debtor can still argue that what was confirmed was the notion that the automobile was worth only $1.00. The creditor can still argue that what was confirmed was the debtor's agreement to pay $450 per month on a secured claim valued according to the creditor's proof of claim.
Thus the creditor's claim was not properly bifurcated, and it still is not. Only a "provision" of a confirmed plan can bind the parties under § 1327(a), and this plan, because of its facial ambiguity, does not contain a provision that actually deals with the claim, actually bifurcates it, or actually resolves it according to law. Consequently, the confirmation of this plan cannot have the res judicata effect intended by 11 U.S.C. § 1327(a), because the bifurcation issue was not actually decided (judicata). As has been stated, albeit in another context,
Similarly, § 1327(a), which states that "[the provisions of a confirmed plan bind the debtor and each creditor . . .,]" does not say and certainly does not mean that something that is not a "provision of a confirmed plan" that is, the precise amount of each creditor's claim is "binding" when it has not yet been determined.
In re Minick, 63 B.R. 440, 441 (Bankr. D.Dist.Col.1986).
Nor is this unfair in any way to the debtor, for the general rule that ambiguous documents are construed against the drafters applies to debtors in chapter 13 cases.
[T]he debtor as draftsman of the plan has to pay the price if there is any ambiguity about the meaning of the terms of the plan. This comports with the long-standing rule that ambiguous terms of a document are to be interpreted against the party that drafted them.
Fawcett v. United States (In re Fawcett), 758 F.2d 588, 591 (11th Cir.1985). Under this general rule of interpretation, and under the most logical and coherent reading of the plan provision, the debtor proposed that the creditor's security had some value that was payable at the rate of $450 per month.
The court emphasizes that it would unhesitatingly hold a creditor to be bound by the provisions of the plan wherein the debtor had assigned a specific but incorrect value to the creditor's security and thus to his allowed secured claim. This is because an incorrect valuation is still a specific valuation. The bifurcation, although arguably wrong, can nevertheless occur and become res judicata under § 1327(a). The court views what happened in this case as distinctly different. It cannot accept because it is unrealistic to do so what is obviously a nominal $1.00 as a true attempt to bifurcate a claim because that would make the other part of the provision to pay $450.00 monthlyan absurdity. Thus, there is no provision in this plan capable of binding the parties with respect to the claim in question because there is no way of knowing what they are bound to. Does the debtor pay $1.00 or $450 per month?
The creditor's claim was filed on October 21, 1997, and shortly thereafter, on November 10, 1997, the debtor converted his chapter 13 case to a case under chapter 7. At that point the creditor's lien had not been stripped. The allowed secured claim had not been paid because it had not been determined. It is undisputed that the creditor's lien was not avoided in the chapter 7 case, and so it results that the creditor still has its lien on the automobile in question. It follows that the creditor does have a claim in this new chapter 13 case, and the court will therefore deny confirmation of the debtor's modified plan because it does not deal with Aegis's claim.
An appropriate order will enter.
NOTES
[1] Because our form confirmation order does not specifically value allowed claims but merely adopts the debtor's plan, the confirmation order adds nothing to either side of the argument and cannot be conclusive of it. The court must therefore resort to analysis of the plan in order to determine what effect confirmation had in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1098938/ | 383 So. 2d 337 (1980)
Sidney W. FREECHOU
v.
THOMAS W. HOOLEY, INC. and Travelers Insurance Company.
No. 65553.
Supreme Court of Louisiana.
April 7, 1980.
Rehearing Denied May 19, 1980.
*338 James J. Morse, Law Offices of James J. Morse, New Orleans, for defendants-respondents.
Ira J. Middleberg, Miranne & Miranne, New Orleans, for plaintiff-applicant.
CALOGERO, Justice.[*]
Plaintiff in this workman's compensation suit alleged that he sustained an inguinal hernia in an accident while working. Summary judgment for defendant in the district court was affirmed in the Court of Appeal.
Sidney W. Freechou was employed by Thomas W. Hooley, Inc. on November 19, 1976. On that date, Freechou alleges that while carrying a heavy cylinder of gas across a set of railroad tracks he slipped and felt a pull in the lower left side of his groin. He alleges that this incident caused an indirect inguinal hernia. Plaintiff further alleges that he reported the incident to his employer the next working day, Monday, November 22, 1976. He was not seen by a physician, nor did he receive medical treatment of any kind until March 4, 1977, some three months after the accident.
Defendants, Hooley and their insurance carrier Travelers, filed a motion for summary judgment based upon R.S. 23:1221(4)(q)(i), and relying upon the fact that the plaintiff was not attended by a physician within thirty days of the accident. The trial court granted the motion and dismissed the suit. The Court of Appeal affirmed the ruling of the trial court.
We granted writs to determine whether, as a matter of law, a workman who suffers an inguinal hernia from an accident occurring in the course and scope of his employment is barred from recovering for that injury under R.S. 23:1221(4)(q)(i) because he is not attended by a physician within thirty days after promptly reporting the accident to his employer. Freechou v. Hooley, 376 So. 2d 326 (1979).
Because of the occasional difficulty encountered by the courts in determining whether the hernia occurred within the course and scope of the employment, R.S. 23:1221(4)(q)(i) was added to the Workmen's Compensation Act by Acts 1968 (Ex. Sess.) No. 25. Guillory v. Farrar, 182 So. 2d 158 (La.App. 3rd Cir. 1966). That statute provides:
"In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer, and that the employee was attended by a physician within thirty days thereafter."
We are called upon in this case to interpret and apply this statute. At the outset, we recognize that the purpose of the Workmen's Compensation Act is to provide the employee with prompt compensation for any "personal injury by accident arising out of and in the course of his employment," unless such compensation is specifically excluded. R.S. 23:1031.
R.S. 23:1221(4)(q)(i), interpreted most favorably to defendant, is not in keeping with that general purpose for it speaks of requirements more stringent than simply a showing of injury suffered in the course and scope of employment.
While we are constrained to interpret this statute only in a reasonable fashion we are nonetheless also cognizant of our obligation to construe the compensation statutes liberally *339 in favor of finding coverage, whether to defeat a tort suit or to afford compensation to the injured employee. Danielson v. Security Van Lines, Inc., 245 La. 450, 158 So. 2d 609 (1963); Johnson v. Cabot Carbon Co., 227 La. 941, 81 So. 2d 2 (1955); and Leblanc v. Commercial Union Assurance Co., 349 So. 2d 1283 (La.App. 1st Cir. 1977).
The Court of Appeal in this case held that the thirty day limitation in the statute (in addition to the requirement for prompt reporting) is a "standard of proof" which must be met by the workman making a claim for an inguinal hernia, and that absent plaintiff's meeting the standard or establishing such proof, the claim is to be barred. We do not agree with this interpretation of the statute for it would lead to irrational and unjust results in some situations if so applied.
R.S. 23:1221(4)(q)(i)'s language is that, "In all claims for inguinal hernia, it must be established by a preponderance of the evidence that . . . ." The statute does not directly assert that it is the plaintiff, or workman, who must "establish by . . . preponderance" the prompt report and attendance by a physician within thirty days; nor does it specify the consequence of failure in this respect. In other sections of the Workmen's Compensation Act, the Legislature has been quite specific where they have chosen to bar a workman's claim absent his compliance with certain statutory requirements. For example, R.S. 23:1031.1(E) provides, "All claims for disablement arising from an occupational disease are forever barred unless the employee files a claim with his employer within four months...; "Section F of that same statute provides, "All claims for death arising from an occupational disease are forever barred unless . . .;" and R.S. 23:1291 provides, "No proceeding under this Chapter for compensation shall be maintained unless...." Standing alone, this argument, that the statute does not unequivocally place upon the employee the burden of prompt reporting and seeing to attendance by a physician, would perhaps be insufficient to support a conclusion that the statute is ambiguous, for the argument can be made that the statute implies that these are the claimant's burdens. Along with other considerations, however, the aforestated argument does indeed lend support to the conclusion that the statute is ambiguous.
The principal consideration, and a compelling reason for concluding that the statute is ambiguous, is the irrational and unjust result which would follow defendant's construction in some fact situations including the one in the present case. Here the accident was reported promptly to the employer, for plaintiff reported his late afternoon accident on the morning of the immediately succeeding work day. It was not evident to him at that time that he had suffered a disabling injury or inguinal hernia.[1] Nor was the workman's condition so immediately disabling as necessarily to require medical attention to facilitate his continued working.[2] If we were to accept defendant's construction of the statute (that the workman's claim is barred if he is not seen by a physician within thirty days of the accident), then in this case plaintiff's claim would be barred before he ever discovered that he sustained the injury.
Furthermore, a workman who fails or neglects to report an accident immediately may be in a better position than one who does report it immediately. This is so because *340 the workman need only report the accident "promptly," followed by the thirty days for attendance by a physician. Thus, a plaintiff like the one in Graver v. Zeeman Enterprises, Inc., 362 So. 2d 1228 (La.App. 4th Cir. 1978) whose report was found to have been prompt when made some ten weeks after the accident, would not be barred although seen by a physician some twelve weeks post accident, while a workman reporting the accident immediately and not seen by a physician within thirty days thereafter would be barred less than five weeks post accident.[3]
The apparent purpose of the statute is to facilitate early diagnosis and avoidance of the sometimes vexatious proof problems in hernia cases. This purpose is served by the workman's prompt report of the accident and the employer's consequent opportunity to require the workman's attendance by a physician. After prompt notification of the accident, the responsibility for insuring the workman's attendance by a physician within thirty days is equally, if not more so, that of the employer. To place the entire burden upon an employee, promptly reporting an accident, to attend a physician of his choice at his own initial cost within thirty days of the report (even though he may not be aware of his injury) under threat of barring his claim, is to invite an employer to desist from sending the workman to a doctor, with his reward being the avoidance of compensation liability. Such an irrational and unfair situation could not have been the intention of the legislature. Furthermore, this is at variance with the employer's obligation under R.S. 23:1122,[4] to cause an examination of an injured workman immediately upon receiving knowledge or notice of the accident.
There is little doubt in our view, that R.S. 23:1221(4)(q)(i) is ambiguous for the reasons expressed hereinabove. And, "Where a statute is ambiguous and susceptible of two constructions, the courts will give that construction which best comports with the principles of reason, justice, and convenience, for it is to be presumed that the legislature intended such exceptions to its language as would avoid its leading to injustice, oppression, or absurd consequences." State v. Standard Oil Company of Louisiana, 188 La. 978, 178 So. 601 (1937); and Flanagan v. A L & W Moore Trucking Contractors et al., 100 So. 2d 289 (La.App. 2nd Cir. 1958), writs denied.
Finding need therefore to apply the statute and to interpret it in a manner which is consistent with logic and the presumed fair purpose and intention of the Legislature in passing it, we interpret R.S. 23:1221(4)(q)(i) to mean that the workman must prove in any claim for an inguinal hernia by preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer; and that he was attended by a physician within thirty days of such prompt report if *341 timely advised or instructed to do so by his employer.
We so construe the statute and therefore find it unnecessary to examine plaintiff's contentions regarding equal protection and due process.
Applying the statute as interpreted herein, plaintiff's claim is not to be barred since, on the pleadings, he was never instructed or advised by his employer to see a physician. Therefore the summary judgment in favor of defendant is not in order.
Decree
For the reasons assigned, the judgment of the Court of Appeal affirming the summary judgment is annulled, reversed and set aside, and it is now ordered that the case be remanded to the trial court for trial on the merits in accordance with this opinion.
JUDGMENT OF THE COURT OF APPEAL REVERSED; REMANDED TO THE DISTRICT COURT.
MARCUS, J., dissents and assigns reasons.
BLANCHE, J., dissents.
LANDRY, J. ad hoc, dissents and assigns reasons.
MARCUS, Justice (dissenting).
Plaintiff was not "attended by a physician within thirty days" after the accident was reported to his employer. Any change in the clear and unambiguous language of the statute addresses itself to the legislature. Accordingly, I respectfully dissent.
LANDRY, Justice ad hoc, dissenting.
It is my considered opinion that the majority award of compensation for hernia in this instance is patently contrary to the express terms and provisions of La.R.S. 23:1221(4)(q)(i), which pertinently states:
"In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer; and that the employee was attended by a physician within thirty days thereafter." (Emphasis supplied).
The statute is obviously procedural in nature. Its requirements are unmistakably clear, unambiguous, and conjunctive. To fulfill the expressly required proof of hernia the employee is statutorily mandated to show that the hernia resulted from an injury arising from an accident which occurred out of and in the course and scope of employment. Additionally, the employee must show that the accident was reported promptly and that he was attended by a physician within thirty days of the accident which allegedly caused the hernia.
The majority recognize the purpose of the statute is to obviate the difficulty of judicial determination of whether a hernia resulted from an accident within the course and scope of employment where medical attention is belatedly sought for an alleged hernia causing accident.
Despite the above acknowledgement, the majority nullifies the requirement of the applicable statute by employing the general provision of La.R.S. 23:1031. Section 1031, above, announces the intent of the Workmen's Compensation Statute to be to provide employees with prompt compensation for personal injury resulting from an accident arising out of and in the course and scope of employment, unless such compensation is specifically excluded. Section 1031, above, also declares that the Workmen's Compensation Statute is to be construed liberally in favor of the employee.
In reaching these conclusions, the majority ignore the fundamental rule of legislative interpretation that in the event of conflict between the general and special provisions of a statute, the latter shall prevail. Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So. 2d 362 (1969).
It is common knowledge that a hernia can result from an ordinary daily act of lifting any object. Section 1221(4)(q)(i), above, recognizes the vulnerability of an employer to a fraudulent claim of work related hernia *342 where the employee does not experience sufficient pain, suffering, discomfort or disability to seek medical attention or treatment within thirty days of an accident. An employee may easily experience a non-hernia producing accident and thereafter, either within or subsequent to the thirty day period, sustain a hernia from an accident or incident totally unrelated to his employment. Without medical appraisal of the effects of the work related accident there is no possible way the employer can refute a fraudulent claim that the work related accident caused the disabling hernia.
The facts of this case are a classical example of the type of situation Section 1221(4)(q)(i) was intended to cover. Here, the employee did not seek medical attention until three months following the accident which he now claims caused his hernia. The employer is effectively deprived of any possible defense to the dilatory claim.
I respectfully dissent.
NOTES
[*] Chief Judge Paul B. Landry, retired, participated in this decision as an Associate Justice Ad Hoc.
[1] Inasmuch as there are no contrary contentions in the pleadings and affidavits and because this case was decided on a motion for summary judgment, we assume facts consistent with the pleadings and most favorable to plaintiff.
[2] While it is true that in many cases the occurrence of a hernia is accompanied by some pain and visible bulging in the groin area, it is equally true that these symptoms often are not initially present and that it may take some time before the contents of the abdominal cavity extend into the inguinal canal causing the symptoms that would require a physician's attendance. Traumatic Medicine and Surgery, P. Cantor, ed., Vol. 7, pp. 195-228 (1962); Attorney's Textbook of Medicine, R. Gray, ed., Vol. 4A, pp. 222-1, 222-75 (1973); and Lawyers Medical Cyclopedia. ... of Personal Injuries and Allied Specialities, C. Frankel, ed., Vol. 4, pp. 365-377.
[3] While the Fourth Circuit in Graver found under the specific facts there that a report ten weeks after the accident was "prompt" within the meaning of the statute, it is worth noting that in the other reported decision on this narrow prompt reporting issue the Second Circuit in Womack v. Pickett, 283 So. 2d 582 (La.App. 2nd Cir. 1973) found that five weeks was not "prompt."
[4] R.S. 23:1122 provides as follows:
"The employer shall cause the examination provided for in the preceding Section to be made immediately after knowledge or notice of the accident, and to serve a copy of the report of such examination made by the employer's physician upon the employee within six days after the employer's receipt of the report of such examination. If the examination is not made and the report is not furnished by the employer within that time, the employee shall furnish a report of the examination made by his own physician to the employer, for which the employee shall be entitled to receive from the employer the actual cost of the examination and the actual cost of the report. The physician's invoice or receipt shall be prima facie proof of the cost. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes the report or any statement therein, shall notify the other of that fact within six days, otherwise the report shall be prima facie evidence of the facts therein stated in subsequent proceedings under this Chapter." (Emphasis provided.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1208584/ | 125 Ariz. 104 (1980)
608 P.2d 41
STATE of Arizona, Appellee,
v.
Max Anderson DUNLAP, Appellant.
No. 4128.
Supreme Court of Arizona, In Banc.
February 25, 1980.
Rehearing Denied March 18, 1980.
John A. LaSota, Jr., Former Atty. Gen., Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Galen H. Wilkes, Asst. Atty. Gen., Phoenix, for appellee.
*105 Jordan Green, Debus & Busby by Larry L. Debus, Murray Miller, Phoenix, for appellant.
GORDON, Justice:
Defendant Max Anderson Dunlap appeals his convictions and sentences for first degree murder and first degree conspiracy. Having jurisdiction pursuant to A.R.S. § 13-4031, we reverse the judgments and sentences of the Superior Court.
On June 2, 1976, a bomb exploded in a car owned and occupied by Phoenix investigative reporter Don Bolles, which resulted in his death eleven days later. Bolles, still conscious and lucid at the scene of the explosion, told bystanders that John Harvey Adamson was involved in the bombing. Adamson was subsequently charged with Bolles' murder. As a result of a plea agreement with the State of Arizona, Adamson agreed to testify on behalf of the state against Dunlap and James Albert Robison who were then charged with murder and conspiracy.
Dunlap was jointly tried with Robison. At trial, Adamson testified that Dunlap had hired him to murder three people, Don Bolles, Al Lizanetz and Bruce Babbitt, then Attorney General, because all three were troublesome to Dunlap's friend and mentor, Kemper Marley. Bolles was selected as the first victim. Adamson further testified that Robison had agreed to assist him in the murder and had detonated the bomb with a remote control device after Adamson had placed the bomb under Bolles' car.
Both Dunlap and Robison were convicted and sentenced to a 29-30 year prison term on the conspiracy count and to death in the gas chamber on the murder count. In separate appeals, Dunlap and Robison challenge their convictions and sentences on a number of grounds. We find one of the issues raised by Dunlap dispositive of his appeal.
Adamson was the state's principal witness against the defendant, and his testimony was central to the state's case. He was cross-examined extensively by defense counsel. During cross-examination, the court sustained certain state objections, and Adamson invoked his Fifth Amendment right against self-incrimination several times. These limitations on cross-examination prompted the defendant to claim a violation of the confrontation right afforded by the Sixth and Fourteenth Amendments. Moreover, he moved that Adamson's direct testimony be stricken, because of his refusal to fully respond to cross-examination. This motion was denied, and Dunlap renews this challenge on appeal.
The Sixth Amendment right of an accused to confront the witnesses against him is a fundamental right made obligatory on the states by the Fourteenth Amendment. Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). A primary interest secured by the clause is the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). Although the trial court has discretion in deciding questions of the scope of cross-examination, the policy in this state has always been to allow a broad scope of cross-examination in order to comport with the confrontation right. State v. Morales, 120 Ariz. 517, 587 P.2d 236 (1978); State v. Ramos, 108 Ariz. 36, 492 P.2d 697 (1972); State v. Holden, 88 Ariz. 43, 352 P.2d 705 (1960). Since the right is guaranteed by the Constitution, a conviction will be reversed if cross-examination has been unreasonably limited. United States v. Norman, 402 F.2d 73 (9th Cir.1968), cert. denied, 397 U.S. 938, 90 S. Ct. 949, 25 L. Ed. 2d 119 (1970). See, e.g., State v. Morales, supra; State v. Briley, 106 Ariz. 397, 476 P.2d 852 (1970).
Reversal, however, is not necessitated by every limitation of cross-examination. See, e.g., State v. Thompson, 108 Ariz. 500, 502 P.2d 1319 (1972). Similarly, not every invocation of the Fifth Amendment requires the striking of a witness' testimony or a part thereof. United States v. Cardillo, 316 F.2d 606 (2d Cir.1963), cert. denied, 375 U.S. 822, 84 S. Ct. 60, 11 L. Ed. 2d 55. In determining whether a witness' refusal to answer impinges upon a defendant's Sixth Amendment right, courts look to *106 several factors. Precluded inquiry into collateral matters or cumulative matters involving general credibility does not necessitate the striking of a witness' testimony. United States v. LaRiche, 549 F.2d 1088 (6th Cir.1977), cert. denied, 430 U.S. 987, 97 S. Ct. 1687, 52 L. Ed. 2d 383; United States v. Gould, 536 F.2d 216 (8th Cir.1976); United States v. Cardillo, supra. Two types of precluded inquiry do, however, require the striking of a witness' direct testimony in whole or in part.[1] One is the refusal of a witness to respond to inquiry into matters elicited by the state on direct examination. United States v. Gould, supra; United States v. Cardillo, supra; see United States v. Norman, supra. The other is the refusal of a witness to respond to inquiry into matters tending to establish untruthfulness with respect to specific events of the crime charged. United States v. LaRiche, supra; United States v. Cardillo, supra.
The state claims that the foreclosed inquiry involved merely collateral matters, justifying the trial court's refusal to strike Adamson's direct testimony. We do not agree. Examination of the transcript of Adamson's testimony leads us to conclude that the preclusion of several questions operated to deny defendant his right to confrontation.
On direct examination, Adamson testified that he first discussed the proposed murders with Dunlap at a time when he went to fit a man named Don Aldridge for clothing. On cross-examination, he admitted that he had no license to do business in the retail selling of clothes, but invoked the Fifth Amendment when asked about the source of supply of the clothing. In the same vein, when Adamson was asked whether he had been engaged in the business of receiving stolen goods during the relevant time frame, the court sustained the state's objection on the basis of materiality and relevance.
Additionally, Adamson testified that he had $8,000 under his control when he discussed legal fees for his potential defense in the Bolles murder with a lawyer after the murder. He stated that just under $6,000 was from Max Dunlap, but again claimed his Fifth Amendment right when asked to divulge the source of the remaining $2,000. Similarly, the defense could not question him regarding the source of his income for 1976, because he also refused to answer the question whether he had filed a federal or state income tax return for that year.
In United States v. Cardillo, supra, the Second Circuit Court of Appeals reversed a trial court for failure to strike the testimony of a witness in a situation similar to the instant one. The witness, whose testimony was critical, had refused to divulge the source of money he allegedly lent to the defendant to finance the purchase of the stolen goods involved in the case. The state claimed that the proposed cross-examination related merely to credibility. The Court held, however, that it did not involve the type of testimony that would have developed the general unsavory character of the witness, as might questions involving prior convictions. The questioning might have led to the demonstration of untruthfulness with respect to specific events of the crime charged.
We consider this reasoning applicable to Adamson's foreclosed testimony. The line of questioning concerning the source of clothing and the business of stolen goods might have led to evidence that there was no such source, or that there was none at the critical time. If so, Adamson's testimony as to his meeting with Dunlap at which *107 the murder was first discussed would have been discredited. As the Court stated in Cardillo, supra, at 612-613:
"Disclosure of a direct lie relating to the events testified to might have had far more influence on the court's ultimate decision than testimony merely establishing the unsavory character of the witness by admissions of prior crimes."
Had defense counsel been able to delve into the sources of the $2,000, he might have uncovered ties with individuals who the defense claimed were responsible for the murder. For example, Dunlap admitted delivering the $6,000 to Adamson, but claimed he did so as a favor to Phoenix attorney Neal Roberts. If Adamson had testified that Roberts had given him the $2,000, Dunlap's testimony would have been bolstered. Additionally, the above discussed inquiry involving the source of clothing and the business of stolen goods might also have led to disclosure of the sources of Adamson's funding.[2]
The precluded lines of inquiry involved subject matter either testified to on direct examination or potentially demonstrative of untruthfulness with respect to specific events of the crime charged. The defendant had a right to gain more complete disclosure about this subject matter on cross-examination. That he was prevented from so doing constitutes reversible error.
The defendant raises a number of additional issues, which we need not address, because we consider his confrontation challenge meritorious.
The judgments and sentences of the Superior Court are reversed and remanded.
STRUCKMEYER, C.J., HOLOHAN, V.C.J., and HAYS and CAMERON, JJ., concur.
NOTES
[1] We need not decide the question whether Adamson's direct testimony should have been stricken in whole or stricken in part, since neither was accomplished. Should the need for such a judgment arise again, it is best left to the trial court's discretion. As the Court opined in United States v. Cardillo, supra: "[W]hether all or a part of the testimony should be stricken, must depend upon the discretion of the trial judge exercised in the light of the particular circumstances. Unsatisfactory as such a generality is for a trial judge who is required to give instantaneous rulings on close questions and who does not enjoy the luxury of reflective appellate deliberation, any set of specific dogmas would be even more unworkable." 316 F.2d 606 at 613.
[2] We speculate as to the role that answers to the precluded questions might have played in the defense in order to analyze the nature of the foreclosed inquiry. See United States v. Cardillo, supra. To discourage undue reliance on the necessity for such speculation in the future, however, we note the following language in Alford v. United States, 282 U.S. 687, 692, 51 S. Ct. 218, 219, 75 L. Ed. 624, 628 (1931): "It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. * * * To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial." (citations omitted.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1218709/ | 794 P.2d 11 (1990)
DAVIDSON LUMBER SALES, INC., Plaintiff and Appellee,
v.
BONNEVILLE INVESTMENT, INC.; Estate of Leonard M. Sproul, by and through Elaine M. Sproul, as personal representative of the Estate; and John Does 1 through 50 Inclusive, Defendants and Appellants.
No. 870086.
Supreme Court of Utah.
May 29, 1990.
L. Rich Humphreys, M. Douglas Bayly, Salt Lake City, for plaintiff and appellee.
Roy G. Haslam, Paul D. Veasy, Salt Lake City, for defendants and appellants.
*12 STEWART, Justice:
After settling a suit against it for the sale of a defective product, Davidson Lumber Sales, Inc., filed suit against Bonneville Investment, Inc., and the estate of Leonard M. Sproul, to recoup the damages that Davidson had paid to settle the first suit. In the instant case, Davidson alleged claims for negligence, breach of implied warranties, indemnity, and contribution against the defendants. The trial court denied the defendants' motion for summary judgment based on Utah Code Ann. § 70A-2-725. We granted the defendants' petition for an interlocutory appeal. We affirm the trial court, but on different grounds.
I. FACTS
Bonneville designed and constructed a laminated wood beam and, on April 29, 1976, sold it to Davidson Lumber. Approximately two months after the sale, Davidson sold the beam to Quality Construction. The beam was eventually installed by Abrams Construction Co. in a building in Las Vegas, Nevada. The owner of the building leased the building to Thrifty Corporation for the operation of a drugstore.
On October 20, 1978, the roof of the building collapsed, causing property damage in excess of $80,000 to Thrifty's drugstore and its contents. On May 21, 1979, Thrifty filed suit in California against several parties, including Davidson. Against Davidson, Thrifty's lawsuit alleged claims for relief based on strict liability in tort, breach of implied warranties of merchantability and fitness for a particular purpose, and negligence. The suit sought damages for the loss of inventory, fixtures, and equipment, for lost profits, and for the costs of repair, salvage, and cleanup. Thrifty did not seek damages for replacement of the beam, since the building belonged to the lessor.
On February 18, 1981, Davidson filed a cross-claim against Bonneville in the California action, but it was dismissed July 28, 1982, because of lack of personal jurisdiction over Bonneville. On August 4, 1982, Davidson sent a letter to Sproul as president of Bonneville, asking Bonneville to defend the California suit against Davidson, but Bonneville declined to defend. On November 16, 1983, Davidson settled Thrifty's claims for $45,000.
Prior to the settlement, on July 26, 1983, Davidson filed the instant action in Salt Lake County against Bonneville and Sproul. Davidson alleged claims against Bonneville for negligence in the construction and design of the wood beam, breach of the implied warranties of merchantability and fitness for a particular purpose, indemnity, and contribution. Davidson also alleged claims against the estate of Sproul and the other officers and directors of Bonneville for liquidating Bonneville Investment, Inc., without the payment of all known debts pursuant to Utah Code Ann. § 16-10-44 (1987). Davidson's suit against Bonneville and Sproul was filed more than seven years after Davidson purchased the beam from Bonneville.
Bonneville and Sproul moved for summary judgment on the ground that Davidson's claims were barred by the statutes of limitation in Utah Code Ann. § 78-12-23(2) and § 78-12-25(2) (1987). That motion was denied. Bonneville and Sproul again moved for summary judgment against Davidson on the ground that Davidson's claims were barred by the Uniform Commercial Code's ("U.C.C.") statute of limitations found in Utah Code Ann. § 70A-2-725 (1980).[1] The trial court ruled that § 2-725, if constitutional, would bar the action under Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214 (Utah 1984), but that § 2-725 was unconstitutional under Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985). The court therefore denied defendants' motion for summary judgment. We granted a petition for an interlocutory appeal.
Defendants contend that the four-year limitations period in § 2-725 controls this case under Perry and requires a reversal of the trial court's denial of their motion *13 for summary judgment against Davidson. Davidson counters with two arguments. First, Davidson contends that § 2-725 was designed only to bar U.C.C. contract claims and not the types of claims asserted in this case. Second, Davidson argues that, even if it is wrong on the first point, Berry v. Beech Aircraft Corp., makes application of the statute of repose in § 2-725 unconstitutional in this case.[2]Berry v. Beech Aircraft Corp., held that a products liability statute of repose was unconstitutional under the open courts provision of the Utah Constitution. Utah Const. art. I, § 11. We need not, however, reach the question of whether § 2-725 would be unconstitutional on the facts of this case under Berry v. Beech Aircraft Corp., unless and until we first decide that § 2-725 is applicable to this case.
II. THE SCOPE OF U.C.C. § 2-725
The first question is whether the trial court erred in holding that § 2-725 applies to Davidson's claims against Bonneville and Sproul. Since the issue is solely an issue of law, we do not defer to the trial court's rulings. Madsen v. Borthick, 769 P.2d 245, 247 (Utah 1988); Asay v. Watkins, 751 P.2d 1135, 1136 (Utah 1988).
A. Perry v. Pioneer Wholesale Supply Co.
At first blush, Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214 (Utah 1984), seems to require the conclusion that the four-year statute of repose in § 2-725 governs this case. That case held that § 2-725 applies to indemnity actions which grow out of an underlying U.C.C. contract or warranty action. Perry is, however, distinguishable. In Perry, the manufacturer sold defective doors to Pioneer, a wholesale supply company, who in turn sold them to Perry, a subcontractor. Perry installed the doors as part of its subcontract on a building project. The general contractor rejected the doors and covered by purchasing replacement doors. The general contractor then sued Perry, and Perry filed a third-party complaint against the wholesaler and the manufacturer for breach of warranty.
The general contractor's action against Perry was based on delivery of nonconforming goods and sought only a contract measure of damages based on the delivery of defective doors. This Court held that § 2-725 governed Perry's third-party complaint and that Perry had four years from the tender of delivery of defective goods to bring its action against the wholesaler and the manufacturer for breach of warranty.[3]Perry, 681 P.2d at 217. The Court stated that the "limitation period specified in the Uniform Commercial Code conflicts with the general limitations rule for indemnity actions... . By its terms, this provision [§ 2-725] appears to override the general rule regarding indemnity actions." Perry, 681 P.2d at 218.
In the present case, the trial court applied Perry and held that Davidson's indemnity claims were barred by § 2-725. The trial court then held that provision unconstitutional as applied.
Davidson's action against Bonneville and Sproul grew out of a prior lawsuit in which Thrifty Corporation sued Davidson. Thrifty, however, was not the purchaser of the beam; rather, it was the lessee of the premises where the beam was installed. Thrifty sued for the damages that the collapse of the beam caused to its personal property and its business. Thus, the damages it sought were not for breach of contract or breach of a U.C.C. warranty, but for the commission of a tort.
The issue in this case is whether § 2-725 applies only to actions for economic or breach of contract damages or whether it also applies to tort actions.
*14 B. Application of § 2-725
The U.C.C. limitations period for breach of contract and warranty cases is four years from the date of the breach of contract or four years from the tender of delivery for a breach of warranty. § 2-725. That section provides in relevant part:
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
1. Negligence claims
Since § 2-725 applies only to "an action for breach of any contract for sale," it does not apply to tort actions and does not, therefore, apply to any of Davidson's claims for relief insofar as they are claims based on tort. In short, it does not apply to Davidson's claims against Bonneville and Sproul that are based on negligence. Since contribution in this context is also a tort concept, it is likewise not subject to § 2-725. See Utah Code Ann. § 78-27-40 (1987).
2. Warranty claims
Whether § 2-725 applies to a breach of warranty action should be decided by the nature of the action and not by the pleading labels chosen. Reese v. Qualtrough, 48 Utah 23, 33, 156 P. 955, 959 (1916). See Heavner v. Uniroyal, Inc., 63 N.J. 130, 145, 305 A.2d 412, 420 (1973); McCarthy v. Bristol Laboratories, 86 A.D.2d 279, 282, 449 N.Y.S.2d 280, 283 (App.Div. 1982). See also Perry, 681 P.2d at 217. Whether Davidson's claims for breach of the implied warranties of merchantability and fitness for a particular purpose are actions for "breach of any contract of sale" within the meaning of that term in § 2-725 or are tort actions is the issue we must now address. It is here that terminology tends to become slippery and legal concepts blurred.
The term "implied warranty" is used in at least two different ways in modern legal parlance. It has been used to denote a contract-type action, and it has also been used to denote a tort-type action. Each action has its own history and set of rules which governs its application.
The U.C.C., as initially written, used the term "warranty" to mean a contract-based action. Heavner, 63 N.J. at 151-52, 305 A.2d at 423. The U.C.C. provides for three specific types of warranties: express warranties, implied warranties of merchantability, and implied warranties of fitness for a particular purpose. See §§ 2-313, 2-314, 2-315.
The term "warranty" has also been used, however, in tort law to have a meaning that is synonymous with strict liability. See, e.g., Victorson v. Bock Laundry Machine Co., 37 N.Y.2d 395, 335 N.E.2d 275, 373 N.Y.S.2d 39 (1975); Parish v. B.F. Goodrich Co., 395 Mich. 271, 280, 235 N.W.2d 570, 573 (1975); Heavner, 63 N.J. at 146-51, 305 A.2d at 421-23. The U.C.C. was drafted before the judicial revolution giving rise to the expansion of strict liability had really occurred, and hence the Code failed to take that development into account. Heavner, 63 N.J. at 152, 305 A.2d at 424. Tort actions, whether called breach of warranty or strict liability actions, developed outside the confines of the U.C.C. and evolved into somewhat broader actions than those that developed under the U.C.C.; nevertheless, there is some overlap.
The common law development of strict product liability law led to the drafting of § 402A of the Restatement (Second) of Torts (1965), which is entitled "Special liability of seller of product for physical harm to user or consumer" and specifies that in certain circumstances "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or *15 to his property is subject to liabiltiy for physical harm therefore caused to the ultimate user or consumer, or to his property...."[4] The comments to § 402A state the intent of the rule and explain the different history of tort and contract "warranty" actions:
In order for the rule stated in this Section to apply, it is not necessary that the ultimate user or consumer have acquired the property directly from the seller, although the rule applies equally if he does so... . The liability stated is one in tort, and does not require any contractual relation, or privity of contract, between the plaintiff and the defendant.
Id., comment 1. Comment m states:
A number of courts, seeking a theoretical basis for the liability, have resorted to a "warranty," either running with the goods sold, by analogy to covenants running with the land, or made directly to the consumer without contract. In some instances, this theory has proved to be an unfortunate one. Although warranty was in its origin a matter of tort liability, and it is generally agreed that a tort action will still lie for its breach, it has become so identified in practice with a contract of sale between the plaintiff and the defendant that the warranty theory has become something of an obstacle to the recognition of the strict liability where there is no such contract. There is nothing in this Section which would prevent any court from treating the rule stated as a matter of "warranty" to the user or consumer. But if this is done, it should be recognized and understood that the "warranty" is a very different kind of warranty from those usually found in the sale of goods, and that it is not subject to the various contract rules which have grown up to surround such sales.
... The rule stated in this Section is not governed by the provisions of the Uniform Sales Act, or those of the Uniform Commercial Code, as to warranties; and it is not affected by limitations on the scope and content of warranties... .
(Emphasis added.) There is, however, a similarity between strict tort liability and liability under the U.C.C. on implied warranties. Each type of liability can give rise to damages for both personal injuries and for personal property damage. Thus, U.C.C. § 2-715(2) defines "consequential damages," which may arise from a seller's breach of warranty, to include personal injury damages, as well as property damages.[5] Nevertheless, under this provision, recovery for personal injury and property damage is dependent on a breach of warranty arising in connection with the sale of a product pursuant to a U.C.C. contract of sale.
Given the somewhat parallel development and history of strict liability law and U.C.C. warranties and the occasional tendency to use the term "warranty" to designate both contract and tort actions, it is not surprising that the courts have not been altogether uniform as to what actions § 2-725 controls. See generally Annotation, Construction and Effect of U.C.C. Art. 2, Dealing With Sales, 17 A.L.R. 3d 1010, § 60(b) (1968 & Supp. 1989). In general, three different positions have been taken by the courts with respect to whether § 2-725 applies to actions for personal injuries and damages to property arising from a defective product. See Wieser v. Firestone Tire & Rubber Co., 596 F. Supp. 1473, 1475 (D.Colo. 1984); Johnson v. Hockessin Tractor, Inc., 420 A.2d 154, 157-58 (Del. 1980). See generally Annotation, What Statute of Limitations Applies to Actions for Personal Injuries Based on Breach of Implied Warranty Under *16 U.C.C. Provisions Governing Sales (U.C.C. § 2-725(1)), 20 A.L.R. 4th 915 (1983).
The first position, which is said to be the majority view, applies § 2-725 to "all actions for breach of warrant[y], regardless of whether the plaintiff seeks personal injury damages or economic and contractual damages." Wieser, 596 F. Supp. at 1475. See Reid v. Volkswagen of America, Inc., 512 F.2d 1294, 1297 (6th Cir.1975); Johnson, 420 A.2d at 157. Under this view, it makes no difference whether the warranty action is an action in contract or tort.
A second view holds that the type of damages sought in an action determines whether the statute of limitations in § 2-725 applies. Actions for personal injury damages or tortious injury to personal property are governed by general, non-U.C.C. limitations periods, while actions for economic or breach of contract damages are governed by § 2-725. See, e.g., Maynard v. General Elec. Co., 486 F.2d 538 (4th Cir.1973); Natale v. Upjohn Co., 356 F.2d 590 (3d Cir.1966); Grey v. Bradford-White Corp., 581 F. Supp. 725 (D.Kan. 1984); Becker v. Volkswagen of America, Inc., 52 Cal. App. 3d 794, 125 Cal. Rptr. 326 (1975); Wilbur Waggoner Equip. v. Clark Equip., 668 S.W.2d 601 (Mo. Ct. App. 1984); Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973).
A third view applies § 2-725 only when there is privity between the parties. See, e.g., United States Fidelity & Guar. Co. v. Truck & Concrete Equip. Co., 21 Ohio St. 2d 244, 257 N.E.2d 380 (1970); Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. 288, 373 A.2d 492 (1977).
In our view, the language of § 2-725 and the expressed intent of the drafters of the U.C.C. support the view that § 2-725 applies only to actions in which economic or breach of contract damages are sought. We hold that § 2-725 does not apply to an action for personal injury or personal property damage, unless the latter is recoverable as consequential damages for breach of a contract or sales warranty. Our view is, therefore, similar to the second view stated above. See Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973).
Section 2-725 was always intended to have an application consistent with the overall purposes and objectives of the U.C.C. It is plainly focused on economic and contractual damages. The Official Comment to § 2-725 emphasizes that it applies only to disputes of a "commercial" and "contractual" nature arising under a sales contract:
Purposes: To introduce a uniform statute of limitations for sales contracts, thus eliminating the jurisdictional variations and providing needed relief for concerns doing business on a nationwide scale whose contracts have heretofore been governed by several different periods of limitation depending upon the state in which the transaction occurred. This Article takes sales contracts out of the general law limiting the time for commencing contractual actions and selects a four year period as the most appropriate to modern business practice. This is within the normal commercial record keeping period.
U.C.C. § 2-725 comment, 1B U.L.A. 588 (1989) (emphasis added). The comment parallels the stated purpose of Article 2 of the U.C.C., which is to establish the law of commercial contracts and contractual remedies.[6] The "[u]nderlying purposes and policies *17 of [the U.C.C.] are (a) to simplify, clarify and modernize the law governing commercial transactions; (b) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties; (c) to make uniform the law among the various jurisdictions." § 1-102(2) (emphasis added). The New Jersey Supreme Court emphasized the same theme in Heavner v. Uniroyal, Inc., 63 N.J. 130, 152-53, 305 A.2d 412, 424 (1973):
Fundamentally, the chapter is commercially and contractually oriented. Its basic framework is that of transactions for the sale of goods between a buyer and his seller and, in the main, the legal incidents with which it deals contemplate two such contracting parties in the conventional commercial setting and claims based on economic loss or loss-of-the-bargain.
One scholar explained this limited policy behind the scope of the limitations period in § 2-725:
Section 2-725 sets the period for limitation of action at four years from the time the breach of warranty occurs. The breach occurs "when tender of delivery is made." This is obviously based entirely on the concept that the product is not in accordance with expectations so the buyer has been damaged and has a cause of action at the moment the article is tendered to him. It completely fails to provide appropriate relief in the case of personal injury, where the cause of action arises only when the injury occurs. If the injured party is not the buyer, the statute of limitations may well have run before he even has a cause of action. The drafters were clearly not thinking of personal injury cases in this section, and if it applies to them the unjust result carries overtones of unconstitutionality.[7] The courts have uniformly felt that they must be resourceful to find a way around such an "unbelievable" result. The usual method is to find that the provision is not intended to apply to tort actions.
Wade, Tort Liability for Products Causing Physical Injury and Article 2 of the U.C.C., 48 Mo.L.Rev. 1, 9-10 (1983) (footnotes omitted). In short, § 2-725 was not intended to govern tort actions for injuries to persons or to personal property, and this is so even though a U.C.C. warranty action may now be maintained for personal injury, independent of a contract of sale, under § 2-318.
Damages for personal injury may now be predicated upon a rather recent amendment to the U.C.C. Section 2-318 (Alternative C) was enacted into law in Utah as § 70A-2-318 (1980) in 1977,[8] to extend a seller's warranty liability beyond the narrow sphere of contracting parties to include persons who suffer personal injury damages and "who may reasonably be expected to use, consume or be affected by the goods" under warranty. Section 2-318 does not expressly impose warranty liability on any person other than a "seller." The Official Comment to § 2-318 explains the purpose of the section and, by implication, *18 reflects the narrow scope of other U.C.C. warranties:
The purpose of this section is to give certain beneficiaries the benefit of the same warranty which the buyer received in the contract of sale, thereby freeing any such beneficiaries from any technical rules as to "privity." ... Implicit in the section is that any beneficiary of a warranty may bring a direct action for breach of warranty against the seller whose warranty extends to him.
U.C.C. § 2-318 comment 2, 1A U.L.A. 556 (1989). Thus, the amendment departs somewhat from the contract-rooted warranty rationale that other U.C.C. warranties are built on. Nevertheless, the scope of § 2-725 was not enlarged to apply to personal injury claims under § 2-318.
In applying § 2-725, a number of courts now distinguish claims for breach of contract damages from claims for personal injury damages or tortious injury and hold that § 2-725 does not apply to the latter claims. The court in Appalachian Power Co. v. General Electric Co., 508 F. Supp. 530, 532 n. 1 (W.D.Va. 1980), stated that § 2-725 governs "an action for injury to the goods, or to the subject of the sale by a party to the contract," but tort injuries are subject to the relevant tort statute of limitations. Similarly, the court in Kelly v. Ford Motor Co., 110 R.I. 83, 290 A.2d 607 (1972), stated that § 2-318 was adopted to broaden a seller's warranty to a limited number of third persons and to impose a manufacturer's as well as a seller's warranty,[9] but that the amendment, even though itself part of the U.C.C., did not carry with it the four-year limitations period from date of delivery prescribed in § 2-725. In Victorson v. Bock Laundry Machine Co., 37 N.Y.2d 395, 408, 335 N.E.2d 275, 281, 373 N.Y.S.2d 39, 47-48 (1975), Judge Fuchsberg stated in a concurring opinion: "[A] careful reading of section 2-725 ... points up the complete absence of references to personal injury and third-party beneficiary actions. The inference is that the intent was to deal exclusively with commercial transactions."
Except for § 2-318, the language of the U.C.C. warranty provisions presuppose bargaining by parties in privity of contract. The contractual nature of § 2-725 is emphasized by the language in subsection (1) that the parties to the contract may reduce the limitations period: "By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it." Indeed, the contracting parties may even bargain as to the scope of the warranties and whether consequential damages may even be allowed. See § 2-316, § 2-719(3). But see § 2-318. Tort "warranties" are not subject to such modifications. See Heavner, 63 N.J. at 155, 305 A.2d at 425-26.
C. Conclusion
Bonneville sold the beam to Davidson on April 29, 1976, and Davidson sold it to Quality Construction on June 24, 1976. Quality Construction installed the beam in a building owned by the landlord of the original plaintiff, Thrifty Corporation. It was Thrifty's personal property that was damaged when the roof collapsed. This suit was filed on July 26, 1983, more than seven years after Bonneville sold and delivered the beam to Davidson. As shown above, § 2-725 applies only to U.C.C. contract and U.C.C. warranty actions (except a warranty action under § 2-318) and to indemnity actions that grow out of such warranty actions. It follows that § 2-725 does not apply to Davidson's indemnity actions where the underlying action was not for a breach of a U.C.C. contract or warranty.
In sum, § 2-725 does not govern any of Davidson's claims against Bonneville or Sproul, whether based on negligence, breach of warranty, contribution, or indemnity.[10]
*19 III. APPLICABLE STATUTE OF LIMITATIONS
We turn next to the general statutes of limitation to determine what the controlling limitations periods are for the actions alleged. What is really involved in this case is the assertion of a right of indemnification, even though the plaintiff has rather liberally invoked other claims for relief in addition.
Except for an indemnity action growing out of a U.C.C. action for the sale of goods, see Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214 (Utah 1984), it makes no difference what the underlying claim is that gives rise to an action for indemnity. A common-law indemnity action is based on a theory of quasi-contract or contract implied in law and is generally held to be governed by the statute of limitations applicable to actions on implied contracts. A common-law indemnity action is, therefore, wholly distinct from the underlying action which gave rise to the right of indemnity. One commentator has stated:
An action on an implied contract of indemnity is wholly independent as a cause of action from the transaction or situation which gave rise to the right of indemnity. Although the right to indemnity may arise out of a tort, the action to enforce the right usually is not governed by the statute relating to the tort. Similarly, a right of indemnity which arises out of an express contract to pay money or perform some other act generally is not governed by the statute of limitations applicable to an action upon an express contract, where such statute is distinct from the statute governing actions upon implied contracts.
Annotation, What Statute of Limitations Covers Action for Indemnity, 57 A.L.R. 3d 833, § 3 (1974). It is generally held that a contract statute of limitations, and specifically the statute that governs implied-in-fact contracts, applies to an action for common-law indemnity. Stephenson v. Duriron Co., 292 F. Supp. 66 (S.D.Ohio 1968), aff'd, 428 F.2d 387 (6th Cir.1970); American Ins. Group v. McCowin, 7 Ohio App. 2d 62, 218 N.E.2d 746 (1966); Owings v. Rose, 262 Or. 247, 497 P.2d 1183 (1972).
Section 78-12-25(1) provides a four-year statute of limitations for "an action on a contract, obligation or liability not founded on an instrument in writing." This provision, according to the authorities above-stated, governs the indemnity action in this case.
A common-law indemnity action does not arise when the underlying damage occurs; rather, it runs from the time of the payment of the underlying claim or the payment of a judgment or a settlement. See Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 218 (Utah 1984); Annotation, When Statute of Limitations Commences to Run Against Claim for a Contribution or Indemnity Based on Tort, 57 A.L.R. 3d 867, § 3[a] (1974).
The general policy in Utah is that statutes of limitations commence to run when the cause of action accrues. See Utah Code Ann., § 78-12-1 (1987). Cf. Horton v. Goldminer's Daughter, 785 P.2d 1087 (Utah 1989); Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985). A tort cause of action accrues when it becomes remediable in the courts, that is, when all elements of a cause of action come into being. State Tax Comm'n v. Spanish Fork, 99 Utah 177, 100 P.2d 575 (1940). Davidson's other actions, warranty, negligence, and contribution, are governed by § 78-12-25(1) and (2). They also commenced to run when Davidson paid the settlement obligation.
All Davidson's claims for relief were subject to the four-year statute of limitations in § 78-12-25. They arose when payment was made on the underlying settlement agreement on November 16, 1983. Davidson's claims were filed July 26, 1983, long before the four-year period allowed by § 78-12-25 ran and are not therefore barred.
HOWE, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.
HALL, C.J., concurs in the result.
NOTES
[1] The Utah version of the U.C.C. may also be found in the Utah Code in title 70A with chapter and section numbers that correspond to the U.C.C. article and section numbers.
[2] We call § 2-725 a statute of repose because the limitations period begins to run when the "breach of warranty," i.e., delivery of the product, occurs and not when damages are incurred. § 2-725(2). See Berry v. Beech Aircraft Corp., 717 P.2d at 672; Perry, 681 P.2d at 218-19. The statute is often called a statute of limitations, however, even though it commences to run at a time other than when damage occurs.
[3] The Court in Perry assumed that the third-party action was in fact an indemnity action. 681 P.2d at 217.
[4] Section 402A of the Restatement (Second) of Torts (1965) was adopted by this state in Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152 (Utah 1979).
[5] U.C.C. § 2-715(2) states:
Consequential damages resulting from the seller's breach include
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty.
[6] That § 2-725 was intended to apply only to cases of breach of contract is also reflected in the Official Comments to § 2-715(2). Section 2-715(2) defines consequential damages to include "injury to person or property proximately resulting from any breach of warranty." The Comments state:
Subsection (2) operates to allow the buyer, in an appropriate case, any consequential damages which are the result of the seller's breach [and] refusing to permit recovery unless the buyer could not reasonably have prevented the loss by cover or otherwise. Subparagraph (2) carries forward the provisions of the prior uniform statutory provision as to consequential damages resulting from breach of warranty, but modifies the rule by requiring first that the buyer attempt to minimize his damages in good faith, either by cover or otherwise.
... .
Particular needs of the buyer must generally be made known to the seller while general needs must rarely be made known to charge the seller with knowledge.
Any seller who does not wish to take the risk of consequential damages has available the section on contractual limitation of remedy.
U.C.C. § 2-715 comments 2 & 3, 1B U.L.A. 418 (1989).
[7] Several courts have acknowledged that § 2-725 might bar a personal injury cause of action before the injury occurs. They have also declared that their state's policy is against such a result. See Parish v. B.F. Goodrich Co., 395 Mich. 271, 282, 235 N.W.2d 570, 574 (1975); Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 403, 335 N.E.2d 275, 278, 373 N.Y.S.2d 39, 43 (1975).
[8] In 1977, the Utah U.C.C. was amended and § 70A-2-318 (1980) became effective May 10, 1977. 1977 Utah Laws ch. 272, § 4. Utah Code Ann. § 70A-2-318 provides as follows:
Third-party beneficiaries of warranties express or implied. A seller's warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section with respect to injury to the person of an individual to whom the warranty extends.
[9] Expansion of the seller's warranty in § 2-318 to the manufacturer was not adopted in Utah as in Rhode Island. Kelly, 110 R.I. at 87 n. 1, 290 A.2d at 609 n. 1. See supra, note 8.
[10] Whether those actions state facts giving rise to a claim upon which relief can be granted, we do not decide. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375713/ | 526 F. Supp. 2d 768 (2007)
William KUCHARSKI, Sr. and William Kucharski, Jr., Plaintiffs,
v.
Todd LEVEILLE, John Grimshaw, and Gerald Bockhausen, Defendants.
No. 05-73669.
United States District Court, E.D. Michigan, Southern Division.
December 5, 2007.
*769 Kenneth D. Finegood, Kenneth D. Finegood Assoc., Southfield, MI, for Plaintiffs.
James T. Farrell, Michigan Department of Attorney General, Lansing, MI, for Defendants.
OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR RECONSIDERATION, REOPENING CASE, AND SETTING CALENDAR DATES
DAVID M. LAWSON, District Judge.
This case is before the Court on the plaintiffs' motion asking the Court to reconsider an order dismissing the lawsuit on statute of limitations grounds. Previously, the Court had granted the plaintiffs summary judgment on liability and denied the defendants' motion for summary judgment on the statute of limitations issue. However, the Court ordered supplemental briefing after a Supreme Court decision cast doubt on the Court's ruling. In the plaintiffs' motion for reconsideration, the plaintiffs point out that in actions under 42 U.S.C. § 1983, such as this, federal courts must look to state law to determine the applicable statute of limitations and the manner of its operation, including the effect of tolling rules. In its memorandum order dismissing this case, the Court neglected to consider Michigan's equitable tolling rules. The Court believes that this lapse amounts to palpable error, the correction of which will result in a different disposition of the case. Therefore, the Court will grant the motion for reconsideration, reinstate the action, and schedule a trial on damages.
I.
The facts of the case are discussed briefly in the Court's last memorandum order dismissing the case, Kucharski v. Leveille, 478 F. Supp. 2d 928 (E.D.Mich.2007), and in more detail in the prior opinion and order adjudicating the cross motions for summary judgment, Kucharski v. Leveille, 2007 WL 522715 (E.D.Mich. Feb.12, 2007). To summarize, on March 24, 2001, police officers from the department of state police received a report of a motor vehicle accident and proceeded to the home of the plaintiffs, William Kucharski, Sr. and William Kucharski, Jr., in St. Clair County, Michigan. They entered the house without a warrant, arrested Kucharski, Jr., took him to have his blood tested for alcohol, and arrested Kucharski, Sr. for interfering. The plaintiffs were prosecuted in state court, but some of the convictions were reversed by the state court of appeals on the grounds of Fourth Amendment violations on September 30, 2004. Thereafter, the plaintiffs filed the present case on September 26, 2005 alleging claims based on 42 U.S.C. § 1983 (for the illegal seizure in violation of the Fourth Amendment) and gross negligence.
*770 After discovery was completed, the parties each filed motions for summary judgment. The defendants' motion was based on a statute of limitations, the asserted validity of the police officers' conduct, and qualified immunity. The plaintiffs alleged in their motion that the undisputed facts established a constitutional violation. On February 12, 2007, the Court granted the plaintiffs' motion on the issue of liability, and granted in part and denied in part the defendants' motion for summary judgment. The Court dismissed the gross negligence claim but rejected the defendants' argument that the section 1983 claim was barred by the statute of limitations.
On February 21, 2007, the Court ordered the parties to file briefs addressing the effect of the Supreme Court's decision in Wallace v. Kato, ___ U.S. ___, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007), on the statute of limitations issue. After the briefs were filed, on March 21, 2007, the Court granted summary judgment for the defendants because the plaintiffs' claims are barred by the statute of limitations. The Court based its decision on Wallace, which held that a section 1983 claim based on an illegal arrest accrues at the time of the arrest, not when the convictions were reversed by a state court, and Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), does not require otherwise. The Court did not examine the question of equitable tolling, but merely observed that "although the practice announced by the Supreme Court was somewhat at odds with the general understanding of Heck, the Court did not allow equitable tolling." Kucharski, 478 F.Supp.2d at 931.
The plaintiffs timely filed their motion for reconsideration alleging that the doctrine of equitable tolling should save their claim. The Court ordered the defendants to respond, which they did.
II.
Motions for reconsideration may be granted pursuant to E.D. Mich. LR 7.1(g)(1) when the moving party to shows (1) a "palpable defect," (2) that misled the court and the parties, and (3) that correcting the defect will result in a different disposition of the case. E.D. Mich. LR 7.1(g)(3). "A `palpable defect' is a defect which is obvious, clear, unmistakable, manifest, or plain." Mich. Dep't of Treasury v. Michalec, 181 F. Supp. 2d 731, 734 (E.D.Mich.2002) (citations omitted). The Local Rules provide that any "motions for rehearing or reconsideration which merely present the same issues ruled upon by the Court, either expressly or by reasonable implication, shall not be granted." E.D. Mich. LR 7.1(g)(3).
In its last order, the Court held that the plaintiffs' complaint was filed out of time because the cause of action accrued at the time of the illegal seizure, not when the state court convictions were overturned. Although the later conclusion was ordained by a well-established line of Sixth Circuit precedent, see, e.g., Swiecicki v. Delgado, 463 F.3d 489, 493 (6th Cir.2006) (citing Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 (6th Cir.1999)), that precedent was overturned by the Supreme Court in Wallace. The Court in Wallace held that a false arrest claim accrues when the illegal detention endsin Wallace's case, when the arrested suspect was taken before a judicial officer. A section 1983 case must be filed, the Court held, within the period of limitations measured from that date. With respect to the complication potentially caused by. Heck, the Court, noted that a district court could "stay the civil action until the criminal case or the likelihood of a criminal case is ended." Wallace, 127 S.Ct. at 1098. Then, "[i]f the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, *771 Heck would require dismissal; otherwise, the civil action will proceed, absent some other bar to suit." Ibid. Because the Wallace. Court did not allow equitable tolling to save, the plaintiffs claim in that case, this Court did not consider the possibility in the present matter.
However, just as limitations periods are taken from state law, so are the rules regarding equitable tolling. Wallace, 127 S.Ct. at 1098 ("We have generally referred to state law for tolling rules, just as we have for the length of statutes of limitation."); Hardin v. Straub, 490 U.S. 536, 539, 109 S. Ct. 1998, 104 L. Ed. 2d 582 (1989) ("Limitations periods in § 1983 suits are to be determined by reference to the appropriate `state statute of limitations and the coordinate tolling rules'; New York's legislative choices in this regard were therefore `binding rules of law.'"); Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir.2007) (dismissing section 1983 claim on the basis on Wallace and observing that "[a]bsent some tolling or delay in accrual, all of these claims would be untimely because they were not brought [for] more than two years after the arrest"). Wallace involved a case from Illinois. The Court noted that it was not aware of any "Illinois cases providing tolling in even remotely comparable circumstances." Wallace, 127 S.Ct. at 1099. The Court declined "to adopt a federal tolling rule" for application in all such section 1983 cases. Ibid. Moreover, the Seventh Circuit had explicitly held that Fourth Amendment claims were exempt from the Heck rule. Copus v. City of Edgerton, 151 F.3d 646, 647-48 (7th Cir.1998) ("Fourth Amendment claims for unlawful searches or arrests do not necessarily imply a conviction is invalid, so in all cases these claims can go forward."). In a footnote, the Court stated,
Had petitioner filed suit upon his arrest and his suit then been dismissed under Heck, the statute of limitations, absent tolling, would have run by the time he obtained reversal of his conviction. If under those circumstances he were not allowed to refile his suit, Heck would produce immunity from § 1983 liability, a result surely not intended. Because in the present case petitioner did not file his suit within the limitations period, we need not decide, had he done so, how much time he would have had to refile the suit once the Heck bar was removed.
Wallace, 127 S.Ct. at 1099 n. 4.
Michigan courts, however, recognize the concept of equitable tolling to relieve a party of the effect of a statute of limitations in certain circumstances. For instance, the Michigan Supreme Court has allowed tolling, thereby allowing a case to proceed, when the plaintiffs failure to comply with the statute is a result of the confusing state of the law. Bryant v. Oakpointe Villa Nursing Centre, 471 Mich. 411, 684 N.W.2d 864 (2004). In Bryant, the, plaintiff was the personal representative of her deceased aunt. The plaintiff alleged that the nursing home failed to give proper care, leading to her aunt's death. The plaintiffs complaint alleged that the defendant's actions constituted negligence. The circuit court ruled that the plaintiffs claims actually sounded in medical malpractice and dismissed the case. The plaintiff refiled her case as a medical malpractice case, which the defendant unsuccessfully moved to dismiss as barred by the statute of limitations. On appeal, the Michigan Supreme Court first determined that some of the plaintiffs claims were medical malpractice claims, for which the limitation period is two years. Although other claims sounded in ordinary negligence, the court held that the plaintiffs medical malpractice claims would be barred if the limitations period were strictly construed. But the court declined to do so, holding:
*772 The equities of this case, however, compel a different result. The distinction between actions sounding in medical malpractice and those sounding in ordinary negligence is one that has troubled the bench and bar in Michigan, even in the wake of our opinion in Dorris. Plaintiff's failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights. Accordingly, for this case and others now pendingthat involve similar procedural circumstances, we conclude that plaintiff's medical malpractice claims may proceed to trial along with plaintiff's ordinary negligence claim. . . . However, in future cases of this nature, in which the line between ordinary negligence and medical malpractice is not easily distinguishable, plaintiffs are advised as a matter of prudence to file their claims alternatively in medical malpractice and ordinary negligence within the applicable period of limitations.
Bryant, 471 Mich. at 432-33, 684 N.W.2d at 876.
In Ward v. Siano, 272 Mich.App. 715, 730 N.W.2d 1 (2006), the Michigan Court of Appeals took a stricter approach to the two-year limitations period in the wrongful death saving statute. But the court recognized that the doctrine of equitable tolling can apply "to a specific extraordinary situation in which it would be unfair to allow a statute of limitations defense to prevail because of the defendant's bad faith or other particular and unusual inequities." Id. at 718, 730 N.W.2d at 2. The court cautioned, however, that "[i]nequities that justify judicial tolling must arise independently of the plaintiff's failure to diligently pursue the claim in accordance with the statute." Ibid.
Recent state supreme court decisions have limited Bryant's scope. In Devillers v. Auto Club Ins. Ass'n, 473 Mich. 562, 70Z N.W.2d 539 (2005), the court overruled precedent recognizing the doctrine of judicial tolling in no-fault insurance cases that effectively extended the one-year-back rule for first-party claims against an automobile insurer. The court noted that the specific statutory command that a claimant "may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced," Mich. Comp. Laws § 500.3145(1), left no room for equity to expand the period. Later, in Trentadue v. Buckler Lawn Sprinkler, 479 Mich. 378, 738 N.W.2d 664 (2007), that court declared that the common law discovery rule would not toll the statute of limitations, since the court did not recognize the common law and the legislature had not provided for suspending the period of limitation during the time that a plaintiff could not have discovered all the elements of her claim. In that case, the court held that the family of a rape and murder victim could not sue the murderer and his employer because the lawsuit was filed 16 years after the crime, despite the fact that the plaintiffs could not have discovered the identity of the murderer until DNA evidence provided the connection only months before the lawsuit was commenced. The court did not overrule Bryant, but rather distinguished it by observing that the court's "use of equity in Bryant is limited to those circumstances when the courts themselves have created confusion." Trentadue, 479 Mich. at 406, 738 N.W.2d at 679.
Based on the foregoing state court precedents, this Court finds that Michigan recognizes the doctrine of equitable tolling, and that a plaintiff may obtain relief from a statute of limitations thereunder if the delay in filing "is the product of an understandable *773 confusion about the legal nature of her claim," Bryant, 471 Mich. at 432, 684 N.W.2d at 876, that confusion is created by the courts themselves, Trentadue, 479 Mich. at 406, 738 N.W.2d at 679, and the delay does not result simply from the plaintiffs lack of diligence, Ward, 272 Mich.App. at 715, 730 N.W.2d at 2. Moreover, where a specific statute controlling the period of limitation is found to abrogate the common law, courts must resort to the statutory tolling rules.
The Court believes that this case qualifies under Michigan law for the application of equitable tolling. First, there is confusion in the jurisprudence that is not clarified by any, statutory pronouncement. The confusion results not from the length of the applicable statute of limitations, but from a determination when the statute starts to run. That confusion has been created by the courts themselves, as evidenced by Wallace's overruling of this Circuit's precedents. Wallace altered the understanding of Heck v. Humphrey's effect on the time a section 1983 claim for unlawful arrest accrues. The Supreme Court decided Heck v. Humphrey in 1994. Heck was convicted of manslaughter, and while his conviction was pending on direct appeal he sued state officials alleging that they improperly investigated the case and destroyed evidence. The Court held that habeas corpus, not a civil tort action, is the proper vehicle to challenge the validity of a criminal judgment, and a claim under 42 U.S.C. § 1983 that implies the invalidity of a criminal conviction cannot be brought until that conviction is reversed, vacated, or called into question in a habeas corpus proceeding. In a footnote, the Court commented on Heck's implications for section 1983 cases alleging an illegal search:
[A] suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, which, we hold today, does not encompass the "injury" of being convicted and imprisoned (until his conviction has been overturned).
Heck, 512 U.S. at 487 n. 7, 114 S. Ct. 2364 (citations omitted).
Some courts interpreted footnote seven to mean that the Heck bar did not apply to Fourth Amendment illegal search claims. See, e.g., Copus v. City of Edgerton, 151 F.3d 646, 647-48 (7th Cir.1998) ("Fourth Amendment claims for unlawful searches or arrests do not necessarily imply a conviction is invalid, so in all cases these claims can go forward."). However, the Sixth Circuit interpreted footnote seven as holding that the reversal of the conviction is an element of a criminal defendant's section 1983 claim that must be shown before a plaintiff may proceed. In Schilling v. White, 58 F.3d 1081 (6th Cir. 1995), the plaintiffs car was searched after he was in a car accident. Drugs were found, and the plaintiff was arrested. The plaintiff pleaded guilty. He then filed a section 1983 suit alleging the search of his car and his arrest constituted an illegal search and seizure in violation of the Fourth Amendment. The Sixth Circuit affirmed dismissal of the plaintiffs claim because his' conviction had not been overturned. According to the Sixth Circuit, Heck "concluded that proof of, the illegality of a conviction is a necessary element of the § 1983 cause of action. Unless that *774 conviction has been reversed, there has been no injury of constitutional proportions, and thus no § 1983 suit may exist." Schilling, 58 F.3d at 1086. After quoting footnote seven from Heck, the court stated that "[t]he language of Heck plainly refutes the argument that Fourth Amendment claims are exempted from the requirement that a conviction must be set aside as a precondition for this type of § 1983 suit." Ibid.
Although Heck involved a plaintiff who already had been convicted in state court, most if not all circuits concluded that Heck barred a section 1983 claim by a plaintiff with criminal charges pending against him if success in the 1983 suit would be inconsistent with a future conviction. In Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 (6th Cir.1999), the Sixth Circuit held that "the concerns of Heck apply pre-conviction as well as post-conviction."
[A] prisoner seeking to challenge an allegedly unconstitutional search and seizure in a § 1983 claim must show that a decision in his favor would not imply the invalidity of his outstanding conviction . . . [and] that a decision in his favor would not imply the invalidity of a future conviction.
Shamaeizadeh, 182 F.3d at 398 (emphasis added). Other circuits agreed. See, e.g., Covington v. City of New York, 171 F.3d 117, 124 (2d Cir.1999) ("[I]f `success on [a § 1983] claim would necessarily imply the invalidity of a conviction in a pending criminal prosecution, such a claim does not accrue so long as the potential for a judgment in the pending criminal prosecution continues to exist.'"); Smith v. Holtz, 87 F.3d 108, 113 (3d Cir.1996) ("[W]e hold that a claim that, if successful, would necessarily imply the invalidity of a conviction on a pending criminal charge . . . does not accrue so long as the potential for a judgment in the pending criminal prosecution continues to exist."); Washington v. Summerville, 127 F.3d 552, 556 (7th Cir.1997) ("If success on these claims would have necessarily implied the invalidity of a potential conviction on the murder charge, then Washington's claims did not accrue until the day on which the murder charge was dismissed."); Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir.2000) ("Heck applies to pending criminal charges, and that a claim, that if successful would necessarily imply the invalidity of a conviction in a pending criminal prosecution, does not accrue so long as the potential for a conviction in the pending criminal prosecution continues to exist."); Beck v. City of Muskogee Police Dep't, 195 F.3d 553; 557 (10th Cir.1999) ("Heck precludes § 1983 claims relating to pending charges when a judgment in favor of the plaintiff would necessarily imply the invalidity of any conviction or sentence that might result from prosecution of the pending charges. Such claims, arise at the time the charges are dismissed.").
Based on these principles, the Sixth Circuit dismissed section 1983 cases filed by plaintiffs with pending criminal charges. See Gorenc v. City of Westland, 72 Fed. Appx, 336 (6th Cir.2003); Shamaeizadeh, 182 F.3d at 399.
In Wallace v. Kato, ___ U.S. ___, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007), the Supreme Court overruled all the precedents in the circuits applying Heck to bar section 1983 claims filed by persons with criminal charges pending in state court or deferring the accrual date of such claims. Heck only applies if the plaintiff has actually been convicted. The Court held that a section 1983 claim based on an illegal arrest accrues at the time of the arrest, not when the convictions were reversed by a state court, and Heck v. Humphrey, does not require otherwise. Shamaeizadeh, plainly, was overruled.
*775 There can be no question that the plaintiffs relied on Sixth Circuit precedent to their prejudice in this case. The untimeliness of the plaintiffs' complaint results from an understandable confusion about the state of the law as to when their claim accrued. That confusion was created by the courts themselves. The delay did not result from the plaintiffs' failure to diligently pursue the claim. In fact, the plaintiffs filed their complaint less than one year after their convictions were reversed.
Moreover, strict application of Wallace to this case effectively deprives the plaintiffs of their cause of action. If the plaintiffs had filed their case immediately after the search on May 4, 2001, Sixth Circuit precedent would have required dismissal of the case as barred by Heck. Once the law changed, the plaintiffs' convictions having been reversed on September 30, 2004, the plaintiffs would be barred by the statute of limitations under Wallace. This is "a result surely not intended." Wallace, 127 S.Ct. at 1099 n. 4. Rather, this is the unusual case that fits neatly within the doctrine of equitable tolling.
The Court concludes that Michigan law tolled the three-year statute of limitations while the plaintiffs' convictions were still viable, and filing this case within three years of the reversal of those convictions does not result in a statute of limitations bar.
Accordingly, it is ORDERED that the plaintiffs' motion for reconsideration [dkt. # 51] is GRANTED.
It is further ORDERED that the judgment dismissing the complaint [dkt. # 50] is VACATED and the complaint is REINSTATED.
It is further ORDERED that this Court's order dated February 12, 2007 [dkt. # 41] is REINSTATED.
It is further ORDERED that plaintiffs shall appear for a final pretrial conference in accordance with the Case Management and Scheduling Order on February 19, 2008, at 3:00 o'clock in the afternoon, the proposed joint final pretrial order shall be submitted to chambers on or before February 12, 2008, motions in limine shall be filed on or before January 22, 2008, pretrial disclosures under Fed.R.Civ.P. 26(a)(3) shall be served on or before January 4, 2008, and trial on the remaining issues shall commence on March 4, 2008. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1448193/ | 918 F. Supp. 1347 (1996)
Richard W. BRUNER, et al., Plaintiffs,
v.
BOATMEN'S TRUST COMPANY, Defendant.
No. 4:92CV1850 CDP.
United States District Court, E.D. Missouri, Eastern Division.
March 26, 1996.
*1348 *1349 Charles A. Seigel, III, Partner Seigel and Wolff, P.C., St. Louis, MO, for plaintiffs.
Elizabeth C. Carver, Associate David S. Slavkin, Bryan Cave, St. Louis, MO, for Boatmen's Trust Company.
Harold S. Goodman, Gallop and Johnson, St. Louis, MO, David T. Hamilton, Partner, Saale and Bailey, St. Peters, MO, for Allied Construction Equipment Company.
MEMORANDUM OPINION
PERRY, District Judge.
This case comes before the Court for decision following a non-jury trial. Plaintiffs, who are participants in a profit sharing plan, allege that their plan trustee breached ERISA's fiduciary duties by investing a large portion of the plan assets in a single guaranteed investment contract issued by one now-insolvent insurance company. The Court finds that defendant breached its fiduciary duties and will therefore enter judgment for plaintiffs.
Findings of Fact
1. Plaintiffs are participants in the Profit Sharing Plan and Trust (the "Plan") of Allied Construction Equipment Company ("Allied"), a Missouri corporation in the business of selling and leasing equipment to the construction industry. Allied is the Administrator and Named Fiduciary of the Plan. Defendant Boatmen's Trust Company ("Boatmen's") was the plan trustee at the time of the investment at issue here.
2. Under the Plan, Allied makes contributions to the trustee from time to time and participants receive distribution of their vested benefits upon death, retirement, disability or termination.
3. Allied first established the plan in 1968, and for approximately six years its investments were handled by the Associated Equipment Distributors Association ("AEDA"). The AEDA engaged John Hancock Insurance Company to render investment advice for the participating plans' assets. Allied was unhappy with the low rate of return on plan investments achieved by John Hancock and AEDA, and in approximately 1974, Allied moved the assets to a St. *1350 Louis bank with whom it did its banking business, Tower Grove Bank. In 1984, Tower Grove Bank merged with a much larger bank, Commerce Bank, who then became the successor trustee of the Plan. While Commerce Bank managed the funds, the Plan assets were heavily invested in bond funds, and Allied was somewhat dissatisfied with the performance of the plan portfolio. Allied had also become dissatisfied with Commerce's handling of its banking business, and had established a banking relationship with Boatmen's National Bank, then one of the largest banks in St. Louis and a related company of defendant Boatmen's Trust Company. In January 1988, Allied decided to investigate the possibility of appointing Boatmen's as the Plan trustee, believing that it was prudent to have the Plan investments handled by the same institution with whom it did its commercial banking.
4. On January 8, 1988, plaintiffs John Gammon, Tom Held, and Stan Novak met with Stephen Mace and Charles Wetzel of Boatmen's to discuss transferring the Plan assets. Mace's job at Boatmen's was marketing or new business development, and Wetzel was the commercial loan officer with whom Allied had a relationship. This January 8, 1988 meeting lasted for approximately one hour and was the first time that the Allied representatives had discussed the Plan investments with Boatmen's.
At the meeting, Mace recommended to Allied that 75% of the Plan assets be invested in Boatmen's G Fund, and the remaining 25% be invested in the Boatmen's Institutional Liquid Asset Fund. Mace told Allied that the Boatmen's G Fund would have a five year maturity and pay an effective interest rate of 8.5% compounded annually.
Before making this recommendation, Boatmen's inquired generally about the size of the assets and learned that Allied wanted a stable investment that would provide a good return without being subject to frequent market changes. Boatmen's did not obtain any documentation about the fund before the meeting, and at the meeting did not inquire about the specifics of the fund, its history, or about anticipated contributions or payouts. Because no one asked, Boatmen's did not learn that a retirement payment in excess of ten percent of total fund assets would be payable in the next few months. Boatmen's did not obtain any written statement of the clients' investment objectives, nor did it inquire into the principals' investment experience.
Although Boatmen's had internal policies that plans should be given written descriptions of the purchased products and should provide written statements that they understood the risks and restrictions involved in their investments, no such writings were used in this case. Boatmen's did not provide any written description of the G Fund, and did not tell the Allied representatives that the G Fund invested in insurance contracts, but told them simply that it was a Guaranteed Investment Contract fund with a five year maturity and an effective interest rate of approximately 8.5%. Because of the Allied representatives' negative feelings about the performance of their fund when John Hancock was the advisor, the mention of an insurance company would have been a red flag to them. Because no one from Boatmen's mentioned that the G Fund invested in insurance companies, however, the parties did not discuss this issue. The Allied representatives believed that Boatmen's was guaranteeing the investment in the G Fund.
5. In late January of 1988, Allied formally appointed Boatmen's as the successor trustee. Boatmen's assigned Michael Kenneally as the investment manager and James Clement as the administrative officer of the Plan assets.[1] On February 8, 1988, Allied transferred Plan assets in the amount of $322,642.09 to Boatmen's. On March 11, 1988, all *1351 remaining funds at Commerce were transferred, in the amount of $9,131.34.
6. When it received the Plan assets on February 8, 1988, Boatmen's temporarily invested all the funds in the Liquid Asset account, which was simply an interest bearing fund from which money could be withdrawn on demand. The next day, February 9, 1988, Boatmen's invested $249,986.23, approximately 77% of the Plan assets, in the Boatmen's G Fund. The G Fund applied these funds toward the purchase of units in a GIC issued by Executive Life Insurance Company of California ("Executive Life"). The Executive Life GIC was to mature on March 1, 1993 and was to pay an effective annual interest rate of 8.65%. The remaining funds were left in the Liquid Asset money market account.
7. Boatmen's G Fund is a collective investment fund which invests in guaranteed investment contracts ("GICs") issued by various insurance companies. The G Fund accumulates funds from employee benefit plan contributions until a sufficient amount is available for investment, and then purchases a GIC issued by an insurance company. A GIC is an agreement with an insurance company by which the purchaser of the GIC is entitled to the repayment of the purchase price plus a stated amount of interest at the maturity date specified in the GIC. A GIC is not a marketable commodity and cannot be redeemed prior to maturity except in limited circumstances or at substantial penalty as specified in the GIC. The GIC is guaranteed only by the insurance company.
8. Boatmen's first established its G Fund in approximately 1985, and had purchased ten GICs before the one involved here. Boatmen's engaged an outside consulting firm, William M. Mercer-Meidinger, Incorporated, to assist in the purchase of GICs for Boatmen's G Fund, and Boatmen's and Mercer-Meidinger together made the selection of the insurance company for each GIC. Their practice, followed in this case and in the preceding ten, was to send Boatmen's GIC specifications out for bids to interested insurance companies, and then to select the particular insurance company based on a variety of factors, including the rate of return offered by the insurance company, the other terms agreed to, and the "quality" of the insurance company.
9. At the time Boatmen's G Fund purchased the Executive Life GIC, Boatmen's knew that Executive Life invested heavily in below investment grade securities (junk bonds). It also knew that a related company, Executive Life Insurance Company of New York, had been required by the New York Insurance Commissioner to stop adding junk bonds to its portfolio. In fact, in the two prior GIC purchases for Boatmen's G fund in 1987, Mercer-Meidinger and Boatmen's had rejected GIC bids by Executive Life because of "quality considerations" and Executive Life's refusal to agree to a buy-back provision if Executive Life's industry ratings fell At trial the Boatmen's witnesses testified that they did not believe that Executive Life was any riskier than other insurance companies, but that their concern had been that it suffered from bad publicity, because of the negative connotations then attached to junk bonds and because of the New York Insurance Commissioner situation. Both concerns about Executive Life were well known in the industry at the time. None of this, of course, was disclosed to plaintiffs, as plaintiffs were not even told that the GIC invested in an insurance company.
10. At the time of the GIC purchase, Executive Life carried a rating of A+ from A.M. Best, a service that rates insurance companies. Part of the bid specification stated that Boatmen's would only purchase GICs from companies having an A or better rating from Best's, and the ten previous GICs contained language that the insurance company would allow Boatmen's to withdraw its investment at book value if the company's rating fell to B+ or below at any time. Although this was requested for the GIC at issue here, the Executive Life GIC purchased by Boatmen's G Fund on February 9, 1988 did not contain such a clause because Executive Life would not agree to it. Executive Life's refusal had, in the two prior GIC bids, been part of the reason Boatmen's did not award the earlier contracts to Executive Life. On this occasion, however, Boatmen's decided to waive the requirement because it *1352 wanted the higher rate of return offered by Executive Life. Rates of return had dropped dramatically following the stock market crash of October 1987, and Boatmen's was reluctant to offer a GIC with a guaranteed rate below 8%. All of the ten previous GICs purchased by the G Fund had paid rates above 8%. Executive Life's offer of 8.65% was considerably higher than the next previous offer. That had also been true of the prior two GICs on which Executive Life bid, but in those cases Boatmen's had rejected Executive Life's bid even though it was higher than the others.
11. On March 7, 1988, the Plan paid an expected lump sum retirement benefit of $42,243.22. The funds for this payment were necessarily withdrawn from the Liquid Asset fund, since they could not be withdrawn from the G Fund. Consequently, the portion of the Plan assets that was invested in Executive Life increased from 77% to approximately 91% of the original investment within one month of the GIC purchase. Taking into consideration the additional contributions and transfers of Plan assets to Boatmen's and the mandatory distributions to participants of the Plan and fees paid to Boatmen's (all of which went into and came out of the Liquid Asset fund), the percentage of total Plan assets invested in the Executive Life GIC varied between 87% and 91% during the period of March 1988 to April 1991.
12. In April 1991, Executive Life was placed in conservatorship by the State of California, rendering Executive Life incapable of satisfying its obligation under its GICs. At that time the Allied Plan had approximately 91% of its assets in the Executive Life GIC; no other participant in this GIC had invested more than 55% of its pension assets in the GIC. Although Boatmen's knew of Executive Life's severe financial problems in the spring of 1990,[2] it did not inform Allied of the Executive Life financial problems until after the conservatorship was established. That was the first time Allied knew that its Plan assets were invested in an Executive Life GIC. On March 1, 1993, the maturity date of the Executive Life GIC, Executive Life failed to pay Boatmen's the amount of principal or interest due under the GIC and froze any payments under the GIC.
13. In early 1994, all claimants in the Executive Life Conservatorship were offered the opportunity to choose from two options for settling their claims: one option involved a new GIC-type contract and the other involved an immediate cash payment and anticipated additional cash payments in the future, estimated at a total payout of 84% of the claim. Boatmen's elected the second option. Boatmen's received $186,902.56 in partial payment of the claim attributable to plaintiffs. This money was credited to the Liquid Asset account on April 21, 1994. Boatmen's records valued plaintiffs' remaining interest in the GIC as having a market value of $84,436.04, but, of course, the GIC units are not marketable and any actual value will only be determined when the conservatorship ultimately is closed. Whether any additional value will be received is not now known.
14. Plaintiffs' expert testified to the effect that the 8.65% rate of return expected from the GIC was a reasonable rate of return had the Plan Assets been properly diversified. Under the plaintiffs' theory, their total Plan assets placed at Boatmen's, at that rate, would have had a value of $551,078.00 through December 31, 1994, rather than the value it now actually has.
Conclusions of Law
1. This action arises under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"). This Court has jurisdiction of this action by virtue of 29 U.S.C. § 1132(e). Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b).
2. The Allied Plan is an employee benefit plan under 29 U.S.C. § 1002(3). Plaintiffs are participants in the Plan under 29 U.S.C. § 1002(7). Allied is the plan sponsor, administrator *1353 and named fiduciary of the Plan pursuant to 29 U.S.C. §§ 1002(16), 1102(a). Boatmen's is the trustee of the Plan under 29 U.S.C. § 1103(a) and is a plan fiduciary under 29 U.S.C. § 1002(21). Plaintiffs have brought this action against Boatmen's under 29 U.S.C. § 1109 and 29 U.S.C. § 1132(a)(2) to recover damages arising from Boatmen's alleged breach of fiduciary duties under 29 U.S.C. § 1104.
3. Plaintiffs allege that Boatmen's breached its fiduciary duties under 29 U.S.C. § 1104 by investing the Plan's assets in Executive Life. Specifically, plaintiffs allege that Boatmen's failed to make a prudent investigation prior to purchasing the Executive Life GIC and that Boatmen's failed to properly diversify the investments of the Plan.
4. The Fiduciary duties section of ERISA requires, in pertinent part, that:
(1) ... a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and
* * * * * *
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; [and]
(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so;
29 U.S.C. § 1104(a)(1).
5. The trustee must determine that an investment chosen for the plan is reasonably designed to further the purposes of the plan, considering, inter alia, the diversity of the plan's overall investment portfolio and the projected return of the portfolio relative to the funding objective of the plan. 29 C.F.R. § 2550.404a-1. The plan trustee must employ "appropriate methods to investigate the merits of the investment and to structure the investment" according to the standards of one in a similar capacity with knowledge of the nature of the investment. Katsaros v. Cody, 744 F.2d 270, 279 (2d Cir.1984), cert. denied, 469 U.S. 1072, 105 S. Ct. 565, 83 L. Ed. 2d 506. "The test of prudence focuses on the trustees' conduct in investigating, evaluating and making the investment." Whitfield v. Cohen, 682 F. Supp. 188, 194 (S.D.N.Y.1988).
6. Under the duty of diversification, the trustee should not normally invest all or an unduly large portion of plan funds in a single security, or in any one type of security, or even in various types of securities that depend on the success of one enterprise. See Marshall v. Teamsters Local 282 Pension Trust Fund, 458 F. Supp. 986, 990 (E.D.N.Y. 1978).
7. Whether a trustee of an ERISA plan has acted prudently is determined according to the prudent person standard established in the common law of trusts. Acosta v. Pacific Enterprises, 950 F.2d 611, 618 (9th Cir.1992); Katsaros v. Cody, 744 F.2d at 278. Under the common law of trusts "[t]he presumption is that the trustee has acted in good faith and the burden of proof is on the one questioning his actions and seeking to establish a breach of trust to prove to the contrary." L.H. Jarvis v. Boatmen's Nat'l Bank of St. Louis, 478 S.W.2d 266, 273 (Mo. 1972); Parker v. Pine, 617 S.W.2d 536, 540 (Mo.Ct.App.1981). The prudent person standard requires the fiduciary to:
(a) employ proper methods to investigate, evaluate and structure the investment; (2) act in a manner as would others who have a capacity and familiarity with such matters; and (3) exercise independent judgment when making investment decisions.
Lanka v. O'Higgins, 810 F. Supp. 379, 387 (N.D.N.Y.1992). "[T]he prudent person standard is not concerned with results; rather, it is a test of how the fiduciary acted viewed `from the perspective of the time of the [challenged] decision rather than from the vantage point of hindsight.'" Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 918 (8th Cir.1994), quoting Katsaros, 744 F.2d at 279; see also Jones v. Baskin, Flaherty, Elliot and Mannino, 738 F. Supp. 937, 941 (W.D.Pa.1989), aff'd, 897 F.2d 522 (3d Cir.1990). This court must look at the circumstances *1354 prevailing at the time Boatmen's made its decision and in light of the available alternatives. Roth, 16 F.3d at 918; DeBruyne v. Equitable Life Assur. Soc. of U.S., 720 F. Supp. 1342, 1348 (N.D.Ill.1989), aff'd, 920 F.2d 457 (7th Cir.1990).
8. The Eighth Circuit has held that once an ERISA plaintiff proves a breach of fiduciary duty and a prima facie case of loss to the Plan, the burden of persuasion shifts to the defendant to show that the losses were not caused by the breach of duty. See Roth v. Sawyer-Cleator, 16 F.3d at 917, citing Martin v. Feilen, 965 F.2d 660, 671 (8th cir. 1992), cert. denied, 506 U.S. 1054, 113 S. Ct. 979, 122 L. Ed. 2d 133 (1993). Any ambiguities in the determination of loss must be resolved against the trustee. See Roth v. Sawyer-Cleator Lumber Co., 61 F.3d 599, 602 (8th Cir.1995) (second appeal).
9. From the evidence presented here it is clear that Boatmen's breached its fiduciary duties to plaintiffs. First, Boatmen's failed to investigate the objectives and needs of the Plan, and, second, it imprudently invested too large a portion of the Plan assets in the Executive Life GIC. By failing to fully investigate the Plan and its history and expectations, Boatmen's failed to learn of plaintiffs' aversions to insurance companies, and therefore it failed to adequately consider the client's needs. More importantly, its failure to investigate contribution and distribution expectations kept it from anticipating the full extent of the lack of diversification. By not learning that over ten percent of Plan assets would be paid out within two months of the transfer, it caused the actual investment in the Executive Life GIC to be much higher than even its own recommended 75%. In any event, even the 75% investment in the Executive Life GIC does not meet the prudent person standard of diversification for this particular Plan, considering the known risks of Executive Life and the objectives and needs of the Allied Plan.
10. Defendant has argued that investment in a single insurance contract meets ERISA's diversification requirement, relying on the "look through" concept discussed in the legislative history and in certain Department of Labor advisory opinions, which indicate that ERISA plan benefits may be invested wholly in insurance or annuity contracts because, in general, insurance companies' assets are themselves invested in a diversified manner. See Conference Report, H.R. 93-1280, U.S.Code. Cong. & Admin.News 1974, pp. 4639, 5038, 5085; see also Arakelian v. National Western Life Ins. Co., 680 F. Supp. 400, 406 (D.D.C.1987). This argument cannot provide solace to defendant here however, because Executive Life's concentration of its own investments in junk bonds provided notice to Boatmen's that Executive Life did not have the typical diversification of assets of most insurance companies. As Boatmen's and its advisor Mercer-Meidinger fully recognized, it was this concentration in below investment grade securities which gave Executive Life the ability to offer the higher rates that caused Boatmen's to award Executive Life the bid for this GIC. Boatmen's knew that the higher rates were associated with higher risks, but did nothing to protect Allied from this known higher risk by properly diversifying the Plan assets.
11. Here it is clear that Boatmen's breached its fiduciary duty and that the Plan suffered a loss. It is also clear that that loss was caused by the breach, although the Court believes that it is possible that plaintiffs may have incurred some of these losses even if Boatmen's had prudently invested the fund in a diversified manner. That is, in the absence of a breach of fiduciary duty, it is possible that Mr. Mace might have convinced the Allied representatives that their aversion to insurance companies was somewhat irrational, and would have sold them some portion of the GIC, along with some other, more traditional, diversified funds. The Court lacks any evidentiary basis to construct a damage calculation that takes this possibility into account. This problem is not fatal to plaintiffs' damage recovery, however, because under the Eighth Circuit rule stated in Roth v. Sawyer-Cleator and Martin v. Feilen, the burden of production was on defendant to show that the loss was not caused by the proven breach, and ambiguities must be resolved against the defendant. The Court will therefore not attempt to allocate any *1355 portion of a hypothetical properly diversified portfolio to the G Fund, but will, instead, accept plaintiff's argument that plaintiff should recover all of its losses from the G Fund.
12. The appropriate measure of damages in this case is the difference between the actual performance of the Plan investments and the performance that would have resulted had the Plan fund been invested prudently and diversely. See GIW Indust. Inc. v. Trevor, Stewart, Burton & Jacobsen, Inc., 895 F.2d 729, 733, 734 (11th Cir.1990). As set forth above, for damages purposes the Court will assume that a properly diversified plan in this case would not have included any investment in the G Fund. The Court believes that plaintiff's calculations, however, are overstated in one respect.
Plaintiff's damage calculation concluded that the expected 8.65% rate of return was a reasonable rate for the entire fund. This conclusion was based on comparisons with other illiquid funds, and the evidence clearly shows that plaintiffs' fund, in order to meet distributions, needed to have some liquidity. The Court concludes that the 25% allocation to a cash account (the Liquid Asset account) was appropriate to meet these needs, and that a prudent diversification of the plan assets would have included an initial 25% of the assets in a readily liquid account such as the one chosen. The evidence did not show what rate this fund generated, and the Court assumes that, as with most money market accounts, the rate varied from time to time and was considerably lower than the 8.65% promised by the GIC. As there was nothing imprudent about allocating this percentage to the cash account, it is not appropriate to conclude that it would have generated the higher rate of return. The appropriate damage calculation should therefore simply ignore this segment of the assets, as it is irrelevant to both the breach and the damages attributable to the breach, and because whatever rate plaintiff has received from this portion of the Plan assets is appropriate. An appropriate award of damages must, therefore, deal only with the $249,986.23 actually invested in the G Fund, rather than with the entire Plan assets held at Boatmen's.
Thus, for purposes of damages, the Court will apply 8.65% to the $249,986.23 investment compounded annually, and will deduct out the $186,902.56 actually received from the conservatorship in April of 1994,[3] for a total damage award to plaintiffs of $271,283.55.
The above calculation does not take into account the fact that plaintiffs still hold some units in the G Fund, which Boatmen's has valued at $84,436.04. The actual value of this investment will not be known until any final distribution from the conservatorship is made, and Boatmen's argues that damages are not capable of ascertainment until that time. The Court's power to grant "other equitable relief" under 29 U.S.C. § 1132(a)(3) of ERISA, however, provides a solution which allows finality of this judgment and avoids the possibility of plaintiffs' obtaining a windfall should the GIC conservatorship eventually produce additional funds. The Court will, in the exercise of its equitable powers, order plaintiffs to transfer their remaining interest in the G Fund to Boatmen's, since an appropriate market value for that remaining interest cannot now be calculated.
13. The Court is also authorized under ERISA to "allow a reasonable attorney's fee and costs of action" to a successful plaintiff. 29 U.S.C. § 1132(g)(1). The Court's award of an attorney's fee is discretionary, but a "plan beneficiary who succeeds in an action to enforce rights under a plan should recover attorney fees unless `special circumstance' would make such an award inequitable." Lutheran Med. Ctr. v. Contractors, Laborers, Teamsters & Eng'rs Health & Welfare Plan, 25 F.3d 616, 623 (8th Cir.1994). The party against whom attorney fees are sought has the burden of proving that such "special circumstances" exist and that they overcome the presumption in favor of an award of attorney fees. Id. at 624.
*1356 The circumstances that a court should consider in awarding attorney fees against a defendant are the following: the degree of culpability or bad faith of the defendant; the defendant's ability to pay an award of attorney fees; the deterrent effect that an award of attorney fees would have; whether the party seeking attorney fees sought to benefit all participants and beneficiaries of an ERISA plan; and the relative merits of the parties' positions. Lutheran Med. Ctr., 25 F.3d at 623; Jacobs v. Pickands Mather & Co., 933 F.2d 652, 659 (8th Cir.1991). Applying these factors to the circumstances of this case, the plaintiffs are entitled to an award of their reasonable attorneys' fees and costs of this action.
14. Having reviewed plaintiffs' attorneys' fee application and defendant's objections thereto, the Court finds that plaintiffs' request is reasonable, with the following exceptions. Plaintiffs' counsel states his fees at a rate of $100 per hour and then asks for an enhancement to $150 per hour. The Court assumes that this means that $100 is plaintiffs' counsel's usual and customary hourly rate and the Court will therefore award that rate, finding no basis for enhancement. Second, the application does not provide any detail for the fees charged by Hammonds & Associates, plaintiffs' expert witness, but merely lists a lump sum of $9,207.00. Mr. Hammonds testified to his hourly rate at trial, but there is no breakout of the bill. The Court finds that $5,500.00 is the reasonable value of Mr. Hammond's services in this case, and will reduce the charge accordingly. Therefore the Court will award $32,090.00 in attorneys' fees and $8,827.17 as reasonable expenses in this case.
Conclusion
Plaintiffs have proven that defendant breached its fiduciary duties and that plaintiffs have been damaged in the sum of $271,283.55. As part of the judgment the Court will order plaintiffs to transfer their remaining interest in Boatmen's G Fund to Boatmen's, to avoid any windfall to plaintiffs should this fund eventually have value. Plaintiffs are also entitled to an award of attorneys fees and costs in the amount of $40,917.17.
A separate Judgment is entered in accord with this opinion.
NOTES
[1] Neither Kenneally nor Clements considered themselves responsible for providing any advice or recommendations regarding the Allied account. Although they invited the plaintiffs to lunch several months after the transfer of assets, nothing substantive was discussed at the lunch. Mace testified that his role ended once the new business was obtained. Kenneally testified that once the 75/25 allocation was made by Mace he really had nothing further to do with the account. Clement did not testify at trial, but the evidence showed that his role was purely administrative, and consisted of supervising the sending of periodic account statements.
[2] Executive Life's Best rating fell to A in early 1990, and within a few months Best's had placed Executive Life on its "Watch" List and then had changed its rating to a "contingent" rating, which is a temporary downgrade. The rating did not actually fall to B+ until early 1991, only two to three months before the conservatorship.
[3] The calculation used by the Court deducted this amount from the principal and interest amount compounded up to April 21, 1994, and then continued compounding the 8.65% interest on only the resulting balance after April 21, 1994, through the date of this judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1729883/ | 398 So. 2d 1037 (1981)
J. Randolph OGDEN
v.
Walter R. BANKSTON and Alice Folkes Bankston.
No. 80-C-2281.
Supreme Court of Louisiana.
May 18, 1981.
*1039 Curtis K. Stafford, Jr., Baton Rouge, for defendants-applicants.
Gerard E. Kiefer, of Forrest, Kiefer, Bacot & Moore, Baton Rouge, for plaintiff-respondent.
DIXON, Chief Justice.
Plaintiff is the owner of an enclosed estate bordering on the Amite River. His estate enjoys a servitude of passage to Greenwell Springs Road over land now owned by defendants, Walter R. Bankston and Alice Folkes Bankston. Defendant Walker R. Bankston, a land developer who desires to subdivide and market his property as a residential neighborhood, contends that the present location of the servitude of passage interferes with his plans to develop and sell the property. The issue before us is whether defendant has a right to relocate the servitude.
Plaintiff petitioned the district court to enjoin the defendant from disturbing his right of passage. Defendant, in his answer and reconventional demand, sought a declaratory judgment to establish his right to have the servitude moved to a different location.
After trial on the merits, the district court granted a permanent injunction, forbidding any further interference with the servitude. The reconventional demand for a declaratory judgment was dismissed on the grounds that defendant failed to prove that the present site of the right of passage had become burdensome.
The Court of Appeal affirmed the decision of the trial court. Odgen v. Bankston, 387 So. 2d 1355 (La.App. 1st Cir. 1980). The court held that defendant did not have a contractual right to relocate the servitude, and that the legal right of relocation under the provisions of the Civil Code could not be claimed, since the record did not establish that the continued existence of the servitude in its present location had become burdensome. Defendant seeks review.
I
The record discloses that the actual roadway has been in existence at least since 1922; it is described as a rustic, tree lined avenue, and is almost a mile in length. Throughout these proceedings, defendant has assumed that the servitude itself was created in 1963, when one of plaintiff's ancestors in title, Margaretta L. Meares, sold a 5.33 acre tract to James B. Ott. Included in this sale was a "perpetual servitude" at the rear of part of the tract, and the servitude of passage to Greenwell Springs Road. In regard to the latter, the act of sale recites the following:
"A servitude of passage for the use and benefit of the above described property, 30 feet wide from the aforesaid property to the Greenwell Springs Road along and adjacent to the South line of the Vaughn Tract owned by vendor. The vendor, however, reserves the right to relocate this servitude of passage at any other location within the Vaughn Tract, provided, however, that if such servitude is relocated, the property herein shall be provided with either a private or a public means of access from the property herein sold to the Greenwell Springs Road, in a condition equal to or better than the condition of any roadway existing on such servitude of passage at the time of such relocation. Nothing herein contained shall obligate the vendor to maintain the aforesaid servitude of passage. This servitude is shown as a private servitude on the map attached hereto."
*1040 By this language, Mrs. Meares attempted to reserve the right to relocate the servitude, contingent only upon the obligation to provide an alternate right of passage to the public road "in a condition equal to or better than" the existing corridor. So long as she could provide an alternate passageway, Mrs. Meares was not required to justify or explain her decision to relocate the servitude. As will be shown, this contractual right of relocation was somewhat broader than the privilege of relocation afforded by the law.
It is the defendant's contention that the benefit conferred by the proviso in the act of sale from Mrs. Meares to James B. Ott is applicable in this case. However, defendant fails to note that this very same servitude was described in a prior act of conveyance. In 1923 Charles C. Bird sold a small parcel of land to Clive W. Kernan. The act of sale recites that the consideration for the purchase was $25.00 in cash:
"... and the additional consideration of a perpetual servitude of way and passage herein granted by the said Clive Wetherill Kernan to the vendor over and along a certain strip of land thirty (30) feet in width acquired by Clive Wetherill Kernan from Mrs. Elizabeth V. Redden, and indicated on the sketch made by A. G. Mundinger... said strip of land having a front of thirty (30) feet on the Greenwell Springs Road and extending along the southern boundary of the strips of land owned by Clive Wetherill Kernan ..."
The plat attached to this conveyance clearly shows that the servitude described above is over the same ground as the servitude mentioned in Mrs. Meares' act of sale to Ott.[1] An act of correction was filed by Clive W. Kernan in 1931, which modified the servitude so that it conformed with the actual location of the roadbed. (According to this act, the roadbed meandered from the lines established for the servitude in the first 500 feet east of Greenwell Springs Road). The parcel of land to which this servitude was due was never part of defendant's chain of title; it passed instead to plaintiff's vendor, while title to the servient estate passed to defendant's vendor.
At all times relevant to this litigation, the provisions of the Civil Code of 1870 were in effect.[2] The code provides that servitudes may arise "from the natural situation of the places, from the obligations imposed by law, or from contract between respective owners." C.C. 659 [C.C. 654 (Supp.1977)]. The term "contract" is understood to include "all acts by which property can be transferred ..." C.C. 743 [C.C. 722 (Supp.1977)]. In the present case, the servitude of passage to Greenwell Springs Road was established in 1923 in an act of sale conveying property to Clive W. Kernan. When servitudes are created by convention between property owners, their use and extent "are regulated by the title by which they are granted ..." C.C. 709 [C.C. 697 (Supp.1977)]. This principle is amplified in C.C. 722, which defines the servitude of passage:
"The right of passage, or of way, is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, on horseback, or in a vehicle, to drive beasts of burden or carts through the estate of another.
When this servitude results from the law, the exercise of it is confined to the wants of the person who has it.
When it is the result of a contract, its extent and the mode of using it is regulated by the contract."
This court must give effect to the terms by which such servitudes are established: *1041 property owners have the right to establish whatever servitudes they deem proper, "... their power in that respect being limited only by considerations of public order ..." Bernos v. Canepa, 114 La. 517, 520, 38 So. 438, 440 (1905).
In general, a servitude must be imposed upon an "estate" or in favor of an "estate;" the service is not to be imposed "on the person or in favor of the person." C.C. 709 [C.C. 646 (Supp.1977)]. A servitude established in favor of immovable property is "predial," a real right that is inseparable from the property to which it is attached. C.C. 653-54 [C.C. 650 (Supp. 1977)]. Although the language creating the servitude in the 1923 act of sale recites that the passageway was granted "to the vendor," it is evident that the right of passage was a real benefit to the estate itself. For this reason, the servitude must be construed as a real right, not one which was personal to the grantee:
"If the right granted be of a nature to assure a real advantage to an estate, it is to be presumed that such right is a real servitude, although it may not be so styled.
C.C. 756 [C.C. 733 (Supp.1977)].
See also C.C. 754-55; Burgas v. Stoutz, 174 La. 586, 141 So. 67 (1932); Coguenhem v. Trosclair, 137 La. 985, 69 So. 800 (1915). This conclusion is bolstered by the language in the 1931 act of correction, filed by Clive W. Kernan, in which it was said that the right of way and passage was "actually laid out for the benefit of the property" of the grantee, Charles C. Bird. A real advantage was secured for the dominant estate because, without the servitude of passage, it would have been enclosed by lands belonging to others, thereby diminishing its value and impairing its utility. The benefit conferred by the establishment of the servitude was not merely personal to the grantee, but was of demonstrable value to subsequent owners of the tract. For these reasons, the servitude must be deemed predial in nature, governed by the contract which established it. C.C. 757 [C.C. 734 (Supp.1977)]. See also C.C. 648 [C.C. 646 (Supp.1977)]; Plaisance v. Gros, 378 So. 2d 178 (La.App. 1st Cir. 1979); McLure v. Alexandria Golf & Country Club, Inc., 344 So. 2d 1080 (La.App. 3d Cir. 1977).
The Court of Appeal was correct in determining that, once a predial servitude is established by contract, the owner of the servient estate "may not superimpose relocation rights over property sold not subject to a right of relocation." 387 So.2d at 1356. The fact that Mrs. Meares acquired ownership of the servient estate did not give her an accompanying right to alter the terms of the initial grant of the servitude:
"Servitudes being essentially due from one estate to another for the advantage of the latter, they remain the same as long as no change takes place in regard to the two estates, whatever change may take place in the owners." C.C. 653 [C.C. 650 (Supp.1977)].
The original servitude was established in favor of an estate which did not form part of defendant's chain of title. As owner of the servient estate, Mrs. Meares was without the right to alter the servitude granted to the original dominant estate:
"He whose estate is incumbered with a servitude, may impose on it other servitudes of any kind, provided they do not affect the rights of him who has acquired the first." C.C. 749 [C.C. 720 (Supp. 1977)].
From the records, it is evident that two servitudes of passage exist over the same roadbed: the one created in 1923 by Mr. Kernan, and the one established in 1963 by Mrs. Meares. And, while Mrs. Meares' right of relocation was effective as to the vendee of the 5.33 acre tract, it was entirely void as to the owner of the original dominant estate. It is thus unnecessary to consider the argument that defendant is entitled to a contractual right of relocation: Mrs. Meares could not exercise any greater rights than could her ancestor in title, Mr. Kernan. C.C. 2015. Since Mr. Kernan did not reserve a right of relocation when he established a servitude in favor of the estate owned by Mr. Bird, Mrs. Meares was *1042 without authority to impose one. More to the point, her vendee was without the power to grant such a concession, since he did not own the previously established dominant estate.
It is also true that, when plaintiff purchased his property, the act of sale included the following language, virtually identical to that which is in the act of sale from Mrs. Meares to James B. Ott:
"Also a servitude of passage for the use of and benefit of the above described property, 30 feet wide from the aforesaid property to the Greenwell Springs Road along and adjacent to the South line of the Vaughn Tract owned by Margaretta L. Meares. Mrs. Meares, however, reserves the right to relocate this servitude of passage in any other location within the Vaughn Tract, providing however, that if such servitude is relocated, the property herein shall be provided with either a private or public means of access from the property herein to the Greenwell Springs Road, in a condition equal to or better than the condition of any roadway resting on such servitude or passage at the time of such relocation. Nothing herein contained shall obligate Mrs. Meares to maintain the aforesaid servitude of passage. This servitude is shown as a private servitude on the map made by Toxie Craft, Civil Engineer, hereinabove referred."
This language was not effective in reviving a right of relocation. As noted, Mrs. Meares' attempt to reserve the right of relocation was void ab initio, insofar as the reservation of that right affected the opposing rights of the owner of the first dominant estate. Mrs. Meares did not own the servitude, to do with it as she pleased: she owed it, and could not affect the rights inhering in the previously established dominant estate.
Even though the language embodying the right of relocation was carried over into the act by which plaintiff acquired title, plaintiff's ownership of the original dominant estate entitled him to enjoy the servitude without being subject to a contractual right of relocation. When the initial establishment of a servitude does not, by its terms, reserve any special rights in favor of the servient estate, such rights cannot be recreated and superimposed over the terms of the original contract without the assent of the owner of the dominant estate. Under the terms of the act through which plaintiff acquired title to the 5.33 acre tract, plaintiff did not grant a right of relocation as to the prior servitude owed to the dominant estate; rather, he merely accepted title to property that enjoyed a second servitude which was subject to a right of relocation. Since Mrs. Meares did not extract the concession of relocation from the owner of the original dominant estate, the notion that she had an absolute right of relocation was unfounded. The fact that plaintiff ultimately became the owner of both estatesthe 5.33 acre tract and the dominant estate originally owned by Mr. Birdis important only insofar as it gave him the accompanying authority to allow an impairment of his real right. The titles, however, show that this was not done. Plaintiff is entitled to enjoy the servitude of passage created in 1923 and modified in 1931, even though he also acquired the servitude established by Mrs. Meares in 1963. Because the agreement creating the former servitude did not reserve a contractual right of relocation, the terms of the suppletive law must be considered.
II
When a servitude is established by convention, C.C. 777 [C.C. 748 (Supp.1977)][3] governs the right of relocation. Discon v. *1043 Saray, Inc., 262 La. 997, 265 So. 2d 765 (1972). C.C. 777 provides:
"The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient.
Thus he can not change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance.
Yet if this primitive assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer to the owner of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due can not refuse it."
C.C. 777 establishes the general principle that the owner of a servient estate can do nothing to diminish the use or convenience of the servitude. The record indicates that the consummation of defendant's plans will substantially destroy plaintiff's present servitude of passage, and subject plaintiff to the inconvenience of using an alternate passageway through a residential neighborhood to reach him home. Nevertheless, C.C. 777 affords a right of relocation if the owner of the servient estate can prove that (1) the servitude has become "more burdensome" to the servient estate since the "primitive assignment," or (2) the servitude prevents the construction of "advantageous repairs." The law confers this right upon owners of servient estates essentially because predial servitudes are "restraints on the free disposal and use of property, and are not, on that account, entitled to be viewed with favor by the law." Parish v. Municipality No. 2, 8 La.Ann. 145, 147 (1853).
Opposed to this consideration is the fact that the servitude itself was a bargained for convenience, established by contract between the respective owners of the dominant and servient estates. As noted, the general principle established in the law is that the owner of a servient estate can do nothing to diminish the use or convenience of the servitude. The jurisprudence is replete with decisions upholding this principle. See, e. g., Poole v. Guste, 261 La. 1110, 262 So. 2d 339 (1972); Hymel v. St. John the Baptist Parish School Board, 303 So. 2d 588 (La.App. 4th Cir. 1974); Kaffie v. Pioneer Bank & Trust Co., 184 So. 2d 595 (La.App. 2d Cir. 1965). These decisions sanctioned the continued use of servitudes even where the restoration of such use imposed a financial burden upon the owners of the servient estates.
In denying defendant's petition for relief, the trial judge concluded that defendant had failed to prove that the servitude was any more burdensome now than it was originally, and that defendant likewise failed to show how the servitude "prevented" the making of useful improvements. The Court of Appeal affirmed this conclusion on the basis that the only showing that was made was that the present location of the servitude impeded defendant from increasing his profits on the sale of the land. Because neither court found that defendant was entitled to relocate the servitude, the question of whether defendant could provide plaintiff with "a place equally convenient for the exercise of his rights" did not need to be addressed. In his written reasons for judgment, however, the trial judge commented that he would not approve the relocation plan proposed by defendant, which would require plaintiff to drive on public streets through a subdivision to reach his property.
Few cases have analyzed the right of relocation under C.C. 777, and those which have are proof of Planiol's observation that "the weighing of the reasons for the displacement is a matter of judicial discretion." 1 M. Planiol, Civil Law Treatise § 2971 (LSLI trans., 1959). See, e. g., Dixie Electric Membership Corp. v. Jones, 360 So. 2d 216 (La.App. 1st Cir. 1978); DeFelice Land Corp. v. Citrus Lands of Louisiana, Inc., 330 So. 2d 631 (La.App. 4th Cir. 1976); Nelson v. Warren, 157 So. 2d 762 (La.App. 2d Cir. 1963); Efner v. Ketteringham, 41 So. 2d 130 (La.App. 2d Cir. 1949). Nevertheless, *1044 the exercise of discretion must be tempered by the words of the positive law.
It should be remembered that defendant's sole object in developing his rural property is to market it as a suburb. As the trial judge noted, the present location of the roadway might to some extent hinder or impede the laying out of lots in the proposed subdivision, but it does not "prevent" it. Plaintiff introduced evidence showing that the subdivision could be designed in another manner that would not be greatly affected by the presence of the roadway. Moreover, it does not appear that the development of a tract of land for sale as a residential neighborhood constitutes "advantageous repairs" as contemplated by C.C. 777. Defendant's estate is not being repaired or improved, but is being subdivided and sold. This development is of no intrinsic value to the servient estate, however advantageous it might be to defendant personally.
The critical question in this case is whether it has been satisfactorily shown that the present site of the servitude "has become more burdensome" to the present owner of the servient estate, defendant. In making this evaluation, "regard must be had to the circumstances of the country and its wants." Parish v. Municipality No. 2, supra, at 148. According to the testimony, the one distinct disadvantage of the present location of the roadway is that it prevents some ten lots in the proposed subdivision from having a full depth of about 150 feet. Defendant himself acknowledged that the servitude could be maintained in its present location without causing any substantial interference with the planned subdivision, except for the first 1000 feet or so of the roadway as it leaves Greenwell Springs Road. (On the plat, this portion includes the area between Greenwell Springs Road and the proposed Wascom Lane). Defendant stated that the servitude would not significantly affect the other lots in the subdivision, since their depth was already in excess of 150 feet. Defendant, accepted by the trial court as an expert real estate appraiser, testified that the location of the servitude in the described area presented a problem because prospective purchasers of rural lots generally prefer to have lots that are at least 150 feet deep. Permitting the servitude to remain at the rear of these lots would diminish their depth below that figure and, as defendant stated, "It would definitely make them less desirable lots, there's no doubt about it, and less desirable lots generally bring less money." In essence, this is the sole proof appearing in the record that in any way explains how the servitude "has become more burdensome" to defendant: it will cause him to make less profit on the sale of less than a dozen lots. Yet, under C.C. 777, it is clear that the "primitive assignment" of the servitude has in fact become more burdensome. When the servitude was originally created in 1923, it is doubtful that the owner of the servient estate contemplated the use of his rural property as a suburban neighborhood. The potential for development arose when circumstances changed: it cannot be doubted that the existence of a country lane presents an altogether different imposition upon the owner of property when it runs through a residential subdivision rather than over rural, undeveloped land.
To the extent that defendant has shown that the servitude hinders his "free use of property," C.C. 753, there is corresponding proof that the location of the servitude has become more burdensome than it was originally. At the same time, it should be recognized that defendant has assumed the position of the original grantor of the servitude, and may not eliminate the benefit conferred by contract simply because it has become a matter of personal inconvenience to him. The record shows that defendant is entitled to relocate the servitude only where it diminishes the depth of the lots in the proposed subdivision below the figure required for the most advantageous use of the property. On the plat, the property thus affected is the area between Greenwell Springs Road and the street designated as Wascom Lane. If defendant can offer plaintiff an alternate passageway between these points, the servitude may be displaced to that extent. It cannot seriously be contended *1045 that requiring plaintiff to drive over a residential street for a short distance does not provide him with "a place equally convenient for the exercise of his rights." C.C. 777. The satisfaction plaintiff may derive from using the land as it is now cannot outweigh the burden imposed upon his neighbors.
Although defendant is not entitled to relocate the entirety of the servitude, that is not to say that the servitude can never be displaced: future owners of the encumbered land may well be able to claim the right of relocation, if plaintiff is provided an equally convenient passageway. As the matter now stands, however, defendant has simply failed to prove that the continued existence of the right of passage inflicts a burden upon him that is any greater than that which the original grantor had to bear, except in the area described above.
The judgment of the Court of Appeal is affirmed in part and reversed in part and the case is remanded to the district court for further proceedings consistent with this opinion. All costs of these proceedings are taxed equally to plaintiff and defendant.
BLANCHE, J., recused having previously acted in the case.
WATSON, J., dissents.
NOTES
[1] Perhaps through inadvertence, the parties did not favor this court with the plat supposedly attached to this act of sale, which is said to show the precise location of the 5.33 acre tract. From the description given in the conveyance, it is clear that this tract did not include any part of the dominant estate, owned by Charles C. Bird.
[2] In 1977 Title IV of Book II of the Civil Code, consisting of articles 646 to 822, was amended and reenacted. Acts 1977, No. 514, § 1. The amended title, effective January 1, 1978, consists of articles 646 to 774. Because the articles pertinent to this case were not substantially changed in the revision, reference will be made to both the old and the new provisions.
[3] C.C. 748 provides:
"The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.
If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2307066/ | 61 N.J. 351 (1972)
294 A.2d 245
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CRAIG JOHNSON, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued June 5, 1972.
Decided July 20, 1972.
*352 Mr. Elson P. Kendall, Assistant Prosecutor, argued the cause for appellant (Mr. Karl Asch, Union County Prosecutor, *353 attorney; Mr. Michael H. Kessler, Assistant Prosecutor, on the brief).
Mr. John De Cicco, Deputy Attorney General, argued the cause as amicus curiae for State of New Jersey (Mr. George F. Kugler, Jr., Attorney General.)
Mr. Herbert I. Waldman, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Robert L. Martin, Assistant Deputy Public Defender, on the brief).
The opinion of the Court was delivered by FRANCIS, J.
The Union County Grand Jury indicted defendant Johnson for murder, and shortly thereafter he applied to be released on bail pending trial. On July 29, 1971 following a hearing the trial court found there was a fair likelihood that Johnson was in danger of a jury verdict of first degree murder, and therefore he was not entitled to bail. State v. Konigsberg, 33 N.J. 367 (1960).
Subsequently this Court in State v. Funicello, 60 N.J. 60, cert. den. sub nom New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972), pursuant to a mandate of the United States Supreme Court, ruled that the death penalty provision of the New Jersey homicide statute was invalid. It then appearing that if upon trial Johnson was found guilty of murder in the first degree he could not be sentenced to death, his motion for bail was renewed. The motion was granted and a further hearing ordered to fix the amount of bail. On the State's application we stayed the proceeding and granted leave to appeal directly to this Court so that the validity of the bail order might be considered at the same time as State v. Lyle, 61 N.J. 179 (1972), decided today.
Article I, par. 11 of the Constitution deals specifically with the matter of bail. It provides:
*354 All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.[1]
As we indicated in Konigsberg, at common law in England and in this country, including New Jersey, the grant of bail in all cases rested in the discretion of the courts. Apparently because of the harsh attitude of judges on the subject various States began to include liberal provisions for bail in their early Constitutions. Connecticut, the first State to do so, in 1818 provided for allowance of bail in all cases except capital offenses. The language quoted above was used in doing so and we copied it later into our 1844 Constitution. Subsequently 40 States followed suit, using substantially the same command. In re Corbo, 54 N.J. Super. 575, 583 (App. Div. 1959), certif. den. Corbo v. Donahue, 29 N.J. 465 (1959).
Although the rule was not incorporated into our Constitution until 1844, its existence by statute preexisted the 1776 Constitution. Chapter VIII of the 1682 Laws of the Province of East Jersey provided "That all persons arrested shall be bailable by sufficient sureties, unless for capital offenses, where proof is evident or presumption great." Leaming & Spicer, Grants and Concessions of New Jersey, 1664-1702, 235 (1881). The depth of the feeling of New Jersey citizens in this regard is shown by the proceedings of the Constitutional Convention of 1844. It was proposed there that the qualifying phrase "where proof is evident or presumption great" be exscinded so as to bar bail *355 for all capital offenses. The motion was defeated. Proceedings, New Jersey Constitutional Convention, 1844 at 157.
As of 1970 the Constitutions of 37 States by language similar to ours had established such a right to bail in non-capital cases. These Constitutions, including that of New Jersey, also contain the additional mandate that "Excessive bail shall not be required." Twelve State Constitutions and the Eighth Amendment of the United States Constitution incorporate only this latter prohibition.[2] See, Preventive Detention, Hearings Before the Subcomm. on Constitutional Rights of the Sen. Comm. on the Judiciary, 91st Cong. 2nd Sess. at 1193 (1970).
Historically, therefore, in New Jersey the right of the individual to bail before trial is a fundamental one. Certainly since 1844 at least, the courts have been under a mandate to allow bail in all criminal cases, including capital offenses, excepting only those instances "when the proof is evident or the presumption great." A capital offense has long been regarded as one for which the death penalty may be imposed. State v. Konigsberg, supra; State v. Williams, 30 N.J. 105, 125 (1959); In re Corbo, supra. So prior to Funicello a pretrial denial of bail meant that the accused was charged with a homicide for which the death penalty might be imposed, and that the proof of his guilt or the presumption thereof was great. Funicello having invalidated the death penalty for the type of homicide charged against Johnson, the question for decision now is whether the Constitution requires that he must be released on bail.
Obviously the duty of the judiciary is to obey the mandate of the Constitution. To deny bail in defiance *356 thereof is to punish an accused before conviction, and to ignore the presumption of innocence which attends every citizen charged with crime actions which are not tolerable under our system of justice. The attitude of the courts toward the present issue, must be deemed presaged by State v. Williams, supra, 30 N.J. at 125. In that case Williams was indicted and tried for first degree murder. At trial the jury found him guilty of second degree murder. We held that such finding constituted an acquittal of first degree murder, and despite our reversal of the conviction and order for new trial (State v. Williams, 29 N.J. 27 (1959)), on principles of double jeopardy, he could not be retried for first degree murder. Williams having sought release on bail pending the retrial, this Court held that since his life was no longer subject to forfeit, the offense was bailable under the Constitution. Consequently the trial court was directed to fix bail on remand of the case to it.
State v. Wolf, 46 N.J. 301 (1966) is also significant in this connection. Wolf was convicted of murder in the first degree and the jury recommended life imprisonment. The conviction was reversed for trial errors (State v. Wolf, 44 N.J. 176 (1965)), and retrial was ordered. Prior to retrial on defendant's application the trial court ruled that the State was barred from again seeking the death penalty. On appeal by the State we affirmed, holding that the jury having rendered a judgment against infliction of the death penalty, the issue must be considered as adjudicated and binding for purposes of the forthcoming trial. The distinction drawn between a verdict of guilt of first degree murder which carried the death penalty and such a verdict which imposed life imprisonment obviously signified that murder which can produce only life imprisonment is not a capital offense, within the meaning of the Constitution.
In a number of States where the Constitution contained the same provision as ours respecting the nonbailability of capital offenses, the death penalty was subsequently abolished. Efforts were made in those States to perpetuate the ban on *357 bail on the theory that the nature of the crime remained the same even though it no longer carried the possibility of death, and that exposure to a sentence of life imprisonment justified a holding that the crime was still a capital one. Such attempts were rejected.
For example, in State v. Pett, 253 Minn. 429, 92 N.W.2d 205 (1958), the Constitution incorporated exactly the same provision for bail as does ours. Thereafter the Legislature abolished the death penalty. When Pett was indicted for murder the State objected to bail substantially for the reasons advanced in the case before us. It contended that since only murder in the first degree was punishable by death, the Constitution had reference to the offense rather than to the punishment and that murder in the first degree was still murder in the first degree, even though no longer punishable by death. In discussing the contention the court said that what the State was asking was that the Constitution be construed to read "except for murder in the first degree" instead of "except for capital offenses." Such a construction it declared was "untenable from a constitutional standpoint." 92 N.W.2d at 206.
The court pointed out that from earliest times a capital offense meant one for which the death penalty may be imposed, and that the Constitution left it to the Legislature to define what was such an offense. It then continued:
When we abolished the death penalty for murder in the first degree, there no longer was any capital offense here. Our Constitution has never been amended to keep pace with the change, nor has our statute been so amended. Of course, an amendment of the statute without an amendment of the Constitution would be ineffective to deprive a defendant of rights which he is guaranteed under our bill of rights. Id.
The court noted the different treatment provided in Article 1, section 9 of the Rhode Island Constitution which gave the right to bail "unless for offenses punishable by death or by imprisonment for life, when the proof of guilt is evident or the presumption great." (See Taglianetti v. Fontaine, *358 105 R.I. 596, 253 A.2d 609 (1969)). It said also that the right to amend the Constitution rests with the people and that if bail is to be withheld in cases other than capital cases, the change must be brought about by such amendment. Citing a number of similar Constitutions of States which had repealed the death penalty, it noted that all of their courts had held that the right to bail was absolute. The conclusion finally reached was that under the Minnesota Constitution the trial court had no discretion except to fix the amount of bail. At 207-209 of 92 N.W.2d.
Ex parte Ball, 106 Kan. 536, 188 P. 424 (1920), may be described as a source case on this subject. The Kansas Constitution included practically the same provision as ours respecting bail in capital offense cases. Thereafter the Legislature abolished the death penalty for first degree murder in favor of life imprisonment, but by a later statute of 1911 ordained that persons charged with first degree murder "shall not be admitted to bail when the proof is evident or the presumption great." Following his indictment for first degree murder Ball sought release on bail. After a review of the authorities the Supreme Court held that he had a constitutional right to bail. It said, among other things:
The Constitution, which in this respect is self-executing, left the Legislature free to prescribe whatever punishment it saw fit for murder, and all other offenses. The Constitution, however, dealt specifically with the subject of bail, and made all offenses which the Legislature did not see fit to punish capitally bailable. The meaning of the Bill of Rights at the time it was adopted cannot be changed without changing the Constitution itself. This the Legislature is not competent to do. At present, treason is the only capital offense under the laws of this state, and all others are bailable as a matter of right, notwithstanding the statute of 1911. 188 P. at 426.
Many cases are referred to in Pett and Ball which clearly support the results reached. Moreover the general law treatises and law reviews confirm their view that where State Constitutions contain the same provision as ours as to bail, and the death penalty is abolished by the Legislature *359 or invalidated as in Funicello, a right to bail exists so long as the constitutionally described right thereto remains unchanged.[3] 8 Am. Jur.2d, Bail and Recognizance, §§ 30-31, pp. 801-802 (1963); 8 C.J.S. Bail §§ 34(1), 34(2), 35, pp. 66-69, 79-81 (1962); Annot.: Abolition of Death Penalty as affecting right to bail of one charged with murder in first degree, 8 A.L.R. 1352 (1920); 6 Words and Phrases, "Capital Case", pp. 133-134; "Capital Crime or Offense", pp. 135-137; "Capital Offenses", pp. 183-184 (1966); Note, Preventive Detention Before Trial, 79 Harv. L. Rev. 1489, 1500 (1966); Foote, The Coming Constitutional Crisis in Bail, supra, 113 U. Pa. L. Rev. at 978; Note, Determination of Accused's Right to Bail in Capital Cases, 7 Vill. L. Rev. 438 (1962): Note, Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 967 (1961); Standards Relating to Pretrial Release, A.B.A. Project on Minimum Standards for Criminal Justice 68 (Approved Draft 1968); Freed and Wald, Bail in the United States: 1964, 2-3 (1964); The Case of the Dangerous Defendant A Study and Proposal, 14th Annual Report of the Judicial Conference of the State of New York, 124, 147 (1969). Expressed in pragmatic terms this right to bail means that the accused has the right to pretrial liberty on such bond in such amount as in the judgment of the trial court under the circumstances *360 of the case will insure his appearance at the trial. If, however, the court is satisfied from the evidence presented on the application for bail that regardless of the amount of bail fixed, the accused if released will probably flee to avoid trial, bail may be denied.
The underlying motive for denying bail in capital cases was to secure the accused's presence at the trial. In a choice between hazarding his life before a jury and forfeiting his or his sureties' property, the framers of the many State Constitutions felt that an accused would probably prefer the latter. But when life was not at stake and consequently the strong flight-urge was not present, the framers obviously regarded the right to bail as imperatively present. State v. Konigsberg, supra; State v. Williams, supra. It was considered that pretrial release on non-capital charges was a fundamental right founded in freedom and human dignity, reflected in the everpresent presumption of innocence, and requiring firm articulation in the Constitutions. As the United States Supreme Court said in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3, 6, (1951) "This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. * * * Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning."[4]
In recent years in some jurisdictions where the right to bail in non-capital cases is not expressly included in the Constitution, the sharp increase in crime and a desire to compensate for a seeming progressive breakdown of our law enforcement structure, have produced agitation for some *361 form of pretrial detention in cases where the prosecuting authorities feel that the accused, if released on bail on the pending charge, may engage in other crimes before he is brought to trial. The subject is highly controversial and serious doubts have been expressed as to the constitutionality of such a practice.[5] Long before the suggestion took on the current specific formality, Justice Jackson of the United States Supreme Court when sitting pro tem as a circuit justice in Williamson v. United States, 184 F.2d 280, 282 (2 Cir.1950), commented:
Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loathe to resort to it[6] * * *.
However, Justice Douglas sitting in a like capacity affirmed the denial of bail after conviction and pending appeal in Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769, application for review denied, 369 U.S. 868, 82 S.Ct. 1137, 8 L.Ed.2d 274 (1962), where the lower tribunal had found that if the defendant were released there was "a strong likelihood that witnesses will be further molested and threatened and perhaps even actually harmed." 82 S.Ct. at 668, 7 L.Ed.2d at 775.
*362 The approved draft of the A.B.A. Project on Standards Relating to Pretrial Release, supra, noted that all the facets of the pretrial detention question had been thoughtfully explored and the Committee concluded that "at this time and on the basis of present knowledge it should not recommend the adoption of preventive detention." § 5.5, Commentary, p. 69. Instead it recommended that where it was found necessary the judge should impose "one or more of the following conditions" on the grant of bail:
(i) [R]elease the defendant into the care of some qualified person or organization responsible for supervising the defendant and assisting him in appearing in court. Such supervisor should be expected to maintain close contact with the defendant, to assist him in making arrangements to appear in court and, where appropriate, to accompany him to court. The supervisor should not be required to be financially responsible for the defendant, nor to forfeit money in the event he fails to appear in court;
(ii) place the defendant under the supervision of a probation officer or other appropriate public official;
(iii) impose reasonable restrictions on the activities, movements, associations and residences of the defendant;
(iv) where permitted by law, release the defendant during working hours but require him to return to custody at specified times; or
(v) impose any other reasonable restriction designed to assure the defendant's appearance. § 5.2, p. 18.
See, also, The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts, 40 (1967). These conditions closely follow those set out in the Federal Bail Reform Act of 1966, 18 U.S.C.A. §§ 3146-3152; see the A.B.A. Project Commentary, supra, pp. 57-58. The Federal statute specifically adheres to the basic notion that the purpose of bail is to reasonably assure the appearance of the accused when required. 18 U.S.C.A. § 3146(a); see United States v. Alston, 136 U.S. App. D.C. 334, 420 F.2d 176 (D.C. Cir.1969), and the conditions in the order for bail in that case directed by the Court of Appeals, i e., relating to (1) an obligation to report immediately for work to a named employer, (2) a direction to re-enroll in the Alcoholic Rehabilitation Clinic *363 and participate in a satisfactory manner in the prescribed program, (3) to live at a designated public house under supervision as to his activities, (4) not to leave the Washington metropolitan area without permission of the District Court, and (5) to deposit 10% of his net earnings with the court clerk until $500 has been deposited as security for his appearance at trial. At 180 of 420 F.2d. The same court denied bail on appeal from a narcotics conviction, even though the appeal was not frivolous, where no suitable program existed for supervision and treatment and defendant had a record of convictions for narcotics offenses and crimes frequently committed by addicts seeking funds for narcotics. Vauss v. United States, 125 U.S. App. D.C. 23, 365 F.2d 956 (D.C. Cir.1966). cf. United States v. Davis, 37 F.R.D. 450 (D.D.C. 1965).[7]
Neither the Legislature nor the trial courts of our State have sought thus far to provide for imposition of such conditions on pretrial release. Nor have we had occasion to deal with the problem. It has been argued generally that there are values of public order and social welfare which justify constitutionally some qualifications on bail freedom by way of exercise of the ever present police power; also that such qualifications tend to preserve domestic tranquillity and *364 the general welfare of the people. There is no specific issue on the subject before us at the moment and so we proceed no further than to say that imposition of conditions on pretrial bail liberty is a matter for the discretion of the trial courts. Of course, the discretion must be exercised reasonably, having in mind that the primary purpose of bail in this State is to insure presence of the accused at the trial, and that the constitutional right to bail should not be unduly burdened.
In the present case the authorities cited above satisfy us that the record made on the bail hearing in the trial court would not constitutionally support a denial of bail. Since the crime for which defendant was indicted is no longer a capital offense he is entitled to pretrial release. Additionally, since the trial court imposed no conditions of the nature of those described above (defendant is 18 years of age and has no previous criminal record), and none are suggested to us as necessary, there appears to be no ground for appellate interference with the trial court's order releasing defendant on bail pending trial.
But release on bail is not simply a formal or automatic matter. A number of factors must be considered in fixing the amount of the bond: (1) the seriousness of the crime charged against the defendant, the apparent likelihood of conviction and the extent of the punishment prescribed by the Legislature. It may be recognized that the same urge for flight is not present where the death penalty is not involved. But exposure to a life sentence for murder may well stimulate a substantial urge to flee even if not as intense as where the accused faces the possibility of death. And the urge may intensify in the future if the recent elimination of the death penalty results in a more restrictive parole policy;[8] (2) the defendant's criminal record, *365 if any, and previous record on bail, if any; (3) his reputation, and mental condition; (4) the length of his residence in the community; (5) his family ties and relationships; (6) his employment status, record of employment and his financial condition; (7) the identity of responsible members of the community who would vouch for defendant's reliability; (8) any other factors indicating defendant's mode of life, or ties to the community or bearing on the risk of failure to appear. See, A.B.A. Standards Relating to Pretrial Release, supra, § 5.1 and commentary pp. 54-56; Task Force Report: The Courts, supra, at 40; Note, Bail: An Ancient Practice Reexamined, supra, 70 Yale L.J. at 974-975. Although those elements should be considered, trial courts should not lose constitutional perspective. The amount of bail should not be excessive even though the controlling test is not the defendant's financial capacity. His indigency although requiring consideration, because inevitably bail discriminates against the poor, cannot of itself outweigh the nature of the crime. On the other hand an excessive bail requirement should not be utilized as a means of confining the accused until trial. The amount of bail required in a given case, where serious offenses, such as murder, are involved, is not an easy decision. But in reaching it, the constitutional right to bail and the presumption of innocence cannot be overlooked.
For the reasons expressed the order of the trial court granting bail is affirmed. The cause is remanded to that court for purposes of fixing the amount thereof.
For affirmance Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and MOUNTAIN 7.
For reversal None.
NOTES
[1] This provision has been substantially incorporated in R. 3:26-1 of the Rules governing criminal practice, as follows:
All persons, except those charged with crimes punishable by death when the proof is evident or presumption great, shall be bailable before conviction on such terms as, in the judgment of the court, will insure their presence in court when required, having regard for their background, residence, employment and family status and, particularly, the general policy against unnecessary sureties and detention * * *.
[2] Doubt as to whether this type of clause imported an absolute right to bail was responsible in most States for the additional language of the type contained in the New Jersey Constitution which specifically granted the right to bail in all non-capital cases. Foote, The Coming Constitutional Crisis in Bail, 113 U. Pa. L. Rev. 959, 969 (1965).
[3] In view of these authorities we cannot agree with the amendment to footnote 45 which the California Supreme Court added in People v. Anderson, 6 Cal.3d 628, 657, 100 Cal. Rptr. 152, 172, 493 P.2d 880, 900, cert. dismissed 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972). In Anderson the death penalty was declared unconstitutional as constituting cruel and unusual punishment in violation of the California Constitution. A petition for rehearing was filed on the question whether bail should be denied as formerly in murder cases where guilt is evident or the presumption great. By way of the footnote amendment the court said the offense was still murder, even though the death penalty could no longer be exacted. Therefore, "subject to our future consideration of this issue in an appropriate proceeding we hold that [murders] remain as offenses for which bail should be denied * * *."
[4] The court here was speaking with reference to the Federal statute and particularly to Rule 46(a) (1) of the Federal Rules of Criminal Procedure which unequivocally provided that a person arrested for a non-capital offense "shall" be admitted to bail. 342 U.S. at 4, 72 S.Ct. at 3, 96 L.Ed. at 6.
[5] For example, on the Federal scene, see report of extensive hearings on former Attorney General Mitchell's proposal in Hearings Before the Subcom. on Constitutional Rights, supra; also in New York, see 14th Annual Report of the Judicial Conference, supra.
[6] Others opposing the idea point to the strong indication revealed by studies that an accused who has been detained in jail between his arraignment and the final adjudication of his case is more likely to receive a criminal conviction or jail sentence than an accused who has been free on bail. Rankin, The Effect of Pretrial Detention, 39 N.Y.U.L. Rev. 641 (1964). The correlation between the pretrial status (jail or bail) and the severity of the sentence after conviction has been described as "extraordinary," the jailed defendant being two or three times more likely to receive a prison sentence. Foote, The Coming Constitutional Crisis in Bail, supra, 113 U. Pa. L. Rev. at 960.
[7] Pretrial bail in narcotics cases raises an increasingly pressing problem. Experience shows that in many instances when addicts are released on bond, their addiction brings them back to the drugs within a very short time in order to satisfy the craving. Moreover, it is not at all uncommon that such persons engage in various criminal activities in order to finance their addiction. Although the various remedial proposals are not before us in this case, it seems plain that in the future consideration will have to be given to them. What conditions, with respect to supervision or treatment, may be imposed in the bail bond, or whether some form of pretrial commitment in the nature of civil commitment for supervision or treatment in a public facility can be ordered, are matters which demand the attention of the trial courts and particularly of the public authorities whose duty it is to seek out remedial preventive measures to protect the addict against himself and to protect the public against the addict.
[8] In California the homicide statute authorizes the trial court in specified cases of first degree murder convictions to impose a sentence of life imprisonment or in the alternative, life imprisonment without possibility of parole. See, Footnote 45 in People v. Anderson, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1846728/ | 731 So.2d 991 (1999)
Theodore MELDER
v.
SEARS, ROEBUCK AND COMPANY and The City of New Orleans.
No. 98-CA-0939.
Court of Appeal of Louisiana, Fourth Circuit.
March 31, 1999.
*994 Leopold Weill, III, New Orleans, Louisiana, Attorney for Plaintiff/Appellant Theodore Melder.
Jonathan C. McCall, W. Anthony Toups, III, Douglas L. Grundmeyer, Lou Anne Milliman, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, Louisiana, Attorneys for Defendant/Appellee Sears, Roebuck and Co.
Court composed of Judge WILLIAM H. BYRNES III, Judge STEVEN R. PLOTKIN and Judge PATRICIA RIVET MURRAY.
MURRAY, Judge.
Theodore Melder filed suit against Sears, Roebuck & Company and the City of New Orleans, seeking damages for false arrest and imprisonment, malicious prosecution, defamation and invasion of privacy. Sears moved for summary judgment as to all claims. The trial court granted the motion and certified the judgment as final under Article 1915 of the Code of Civil Procedure. For the following reasons, we affirm.
FACTS:
Theodore Melder was arrested on November 20, 1985, at the Sears store in the Lake Forest Plaza Shopping Center, where he was employed as a salesman in the television department. The arrest followed an investigation by Sam Carriere,[1] the head of security at the Sears Lake Forest store. The investigation was prompted by the auditing department's discovery of irregularities involving returns of merchandise for cash or credit at the store.
As a routine practice, the auditing department sent out letters to customers who had returned merchandise to ascertain, among other things, why the merchandise was returned, and if the customer was satisfied with the store's handling of the return. If a letter was returned because of a bad address or if the customer replied that he did not make a return of merchandise, the letter was turned over to store security. Mr. Carriere became suspicious when he noticed that several of these letters involved transactions authorized by Mr. Melder.
Mr. Carriere conducted an investigation that included cross-checking various store records, and attempting to personally contact the customers listed on the suspicious credit slips. If he could not contact a customer by telephone, he would try to locate an address and send a verification letter to that customer. Mr. Carriere also verified that Mr. Melder had been on duty on the days the suspicious slips had been issued, and that the cash register involved had balanced at the end of each day. After completing his investigation and determining that numerous credit slips were not legitimate, he approached Mr. Melder.
According to Mr. Melder's deposition testimony, he was called to Mr. Carriere's office during his shift on November 20, 1985, and was told that Mr. Carriere was investigating thefts from the television department. Mr. Carriere asked Mr. Melder if he would help in the investigation, to which Mr. Melder replied he would not.[2] Mr. Melder was then told that he was the person being accused of the thefts, and *995 Mr. Carriere thereafter summoned New Orleans Police Officer Michael R. Bolline, who was working a detail at the store, to arrest him.
Mr. Melder was acquitted of the theft charges after a bench trial on October 21, 1986. The trial judge stated that he was prone to find Mr. Melder guilty, except for the fact that, among other things, the State had failed to introduce the testimony of a handwriting expert to verify that Mr. Melder had forged customers' signatures or falsified information on the credit slips.
In May of 1987, Mr. Melder filed this suit in Orleans Parish Civil District Court. Sears moved for a summary judgment of dismissal in September 1997, and the trial court granted its motion. This appeal followed.
DISCUSSION:
In his petition, Mr. Melder alleges that Sears and the City of New Orleans are liable for damages sustained as a result of false arrest and imprisonment, malicious prosecution, defamation, and invasion of privacy. On appeal, he asserts that the trial court erred in granting Sears' motion for summary judgment because there are genuine issues of fact as to each and every claim, and Sears is not entitled to summary judgment as a matter of law.
Summary judgments are reviewed on appeal de novo. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. Facts are material when their existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Id. at 27, 639 So.2d at 751.
Louisiana Code of Civil Procedure article 966 C now provides:
(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, motion, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
In this case, Sears argued that the pleadings, depositions, and other evidence offered in support of its motion establishes that Mr. Melder will be unable to prove at least one essential element of each claim he has asserted.
A. False Arrest and Imprisonment:
Mr. Melder argues that Sears falsely arrested and/or imprisoned him when he was called into Mr. Carriere's office on November 20, or that Sears instigated or effected a false arrest by Officer Bolline.
False arrest and imprisonment occur when a person is arrested and restrained against his will without a warrant or other statutory authority. Harrison v. Phillips, 539 So.2d 911, 913 (La.App. 4 Cir.), writ denied, 541 So.2d 894 (La.1989). An arrest occurs when one person takes another into custody and there is an actual restraint of that person. State v. Giovanni, 375 So.2d 1360, 1363 (La.1979).
In his deposition, Mr. Melder admitted that he was not detained after being called to Mr. Carriere's office. At no time was he prevented from leaving:
Q: Now when Mr. Carriere called you to his office, did you go of your own free will?
A: Yes.
*996 Q: Did he force you to stay in his office at any time?
A: No.
This admission by Mr. Melder that he was not detained by a Sears' employee negates his claim of false arrest and imprisonment by Sears. However, as stated above, Mr. Melder claims also that Sears is liable for false arrest and imprisonment because it effected Mr. Melder's arrest by summoning Officer Bolline to arrest him. To support this claim, Mr. Melder must prove that his arrest was illegal or false.
Louisiana Code of Criminal Procedure article 213(3) provides that a peace officer may arrest without a warrant when "[t]he peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer." Article 214 further provides that "[a] private person may make an arrest when the person arrested has committed a felony, whether in or out of his presence."
Probable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge, and of which he has reasonable trustworthy information, are sufficient to justify an average man of caution in believing the person to be arrested has committed an offense. State v. Noto, 596 So.2d 416, 419 (La.App. 4 Cir.1992). The arresting officer does not need to be convinced beyond a reasonable doubt of the guilt of the arrested person. State v. Weinberg, 364 So.2d 964, 969 (La. 1978). The determination of probable cause requires more than suspicion, but does not require evidence sufficient to support a conviction; as the name implies, probable cause deals with probabilities. State v. Johnson, 94-1170, p. 4 (La.App. 4 Cir. 8/23/95), 660 So.2d 942, 946 writs denied, 95-2331, 95-3044 (La.2/2/96), 666 So.2d 1092, 1105. "The determination of probable cause involves factual and practical considerations of everyday life on which average men ... can be expected to act." Id. at pp. 4-5, 660 So.2d at 946, citing State v. Ogden, 391 So.2d 434 (La. 1980).
Officer Bolline testified that he was summoned to Mr. Carriere's office where Mr. Carriere briefed him on the situation. He stated that Mr. Carriere told him that Sears' accounting department had discovered a large number of suspicious credit slips that had been exchanged for money, and that Mr. Melder's signature or initials was on each of them. Mr. Carriere explained that he had sent letters to each of the customers whose names appeared on the credit slips, and that the letters were either returned because of bad addresses, or the customer denied having returned the merchandise indicated on the slip. Officer Bolline was told that Mr. Carriere had confirmed that Mr. Melder was working at the time each slip was cashed. Officer Bolline was also told that the Orleans Parish District Attorney's office had been contacted and had indicated that there appeared to be sufficient evidence to charge Mr. Melder with theft by fraud.
Officer Bolline further testified that before he entered the office where Mr. Melder was sitting, Mr. Carriere orally summarized the documentary evidence he had assembled in the course of his investigation. However, Officer Bolline did not actually see this evidence, which included thirty-eight credit slips processed by Mr. Melder since January 1985 as well as computer printouts from the cash registers involved, until after Mr. Melder had been arrested and given his rights.
Mr. Melder has offered no evidence to contradict Officer Bolline's deposition testimony, arguing only that the fact that he was acquitted establishes that there was no probable cause for his arrest. Mr. Melder claims that Officer Bolline should have conducted his own independent investigation and/or review of each document before arresting Mr. Melder. We disagree. The information supplied to Officer Bolline was sufficient for him to believe there was a reasonable probability that Mr. Melder had committed a crime. He *997 knew that a crime had been committed and believed that Mr. Carriere was a reliable source of information. Mr. Melder has failed to establish that he was arrested without probable cause.
The record supports Sears' proposition that Mr. Melder was not falsely imprisoned or arrested by Sears, or that Sears effected his illegal arrest by the New Orleans Police Department.[3] Mr. Melder has produced no factual support sufficient to establish that he will be able to satisfy his burden of proof on this claim at trial. Therefore, there is no genuine issue of material fact and summary judgment was proper.
B. Malicious Prosecution:
The elements that a plaintiff must prove to support a claim of malicious prosecution are:
1. The commencement or continuance of an original criminal proceeding;
2. Its legal causation by the present defendant against the plaintiff who was the defendant in the original proceeding;
3. Its bona fide determination in favor of the present plaintiff;
4. The absence of probable cause for such proceeding;
5. The presence of malice therein; and
6. Damage conforming to legal standards resulting to the plaintiff.
Keller v. Schwegmann Giant Supermarkets, Inc., 604 So.2d 1058, 1060 (La.App. 4 Cir.), writ denied, 609 So.2d 232 (La.1992).
It is undisputed that Mr. Melder was tried for theft, and was acquitted. Those facts are arguably sufficient to satisfy the first three elements necessary for his claim. However, to maintain his claim for malicious prosecution, Mr. Melder must prove also that Sears lacked probable cause to have him arrested, that it had a malicious purpose for doing so, and that he suffered damages as a result of the prosecution.
As explained above, Mr. Melder failed to offer any evidence suggesting that Sears' evidence was insufficient to refer the matter for prosecution. Mr. Carriere testified at Mr. Melder's criminal trial that the auditing department gave him two credit slips apparently authorized by Mr. Melder. In response to the verification letter sent out by the department, the customer on the slip either did not live at the address given, or responded that merchandise had not been returned. He did not find anything particularly suspicious about this until, within a very short period of time, he received three more slips from the auditing department, all with Mr. Melder's authorization. Mr. Carriere attempted to contact all of the customers involved, and either found that the address given for the customer was incorrect or was told by the customer that merchandise had not been returned. This prompted him to pull other credit slips for that time period.
Mr. Carriere testified that his suspicions about Mr. Melder's involvement increased after he checked time cards to see if Mr. Melder was working when the credit slips were redeemed. He was. The credit slips indicated the date the merchandise was originally purchased. Mr. Carriere checked the register tapes for those dates, but the tapes did not indicate that a sale for that amount was made. To confirm that the slips had not been placed in the drawer in error, he checked the over/short records for the registers, but the registers balanced. Mr. Carriere thus concluded that the slips had been placed in the drawer and cash had been removed.[4]
*998 Mr. Carriere then checked the credit slips back to the beginning of the year (1985). On all of the slips that appeared to be similar, he attempted to call the customer. If he could not reach the customer by telephone, he sent verification letters. These were either returned as undeliverable, or the customer responded that merchandise was not returned. Only after this extensive investigation did Mr. Carriere approach Mr. Melder for an explanation and, receiving none, filed a criminal complaint.
We note that there are some minor discrepancies between Mr. Carriere's recollection of the facts of the investigation and Officer Bolline's testimony about what he was told by Mr. Carriere. These discrepancies are, however, irrelevant to the issue of probable cause. Mr. Carriere's testimony clearly indicates that Sears had sufficient probable cause to ask for Mr. Melder's arrest.
Because Mr. Melder has failed to establish that Sears lacked probable cause to assert criminal charges against him, a necessary element of his claim for malicious prosecution, we need not address the remaining elements. The grant of summary judgment as to this claim was proper.
C. Defamation:
To support his claim for defamation, Mr. Melder must prove a false and defamatory statement about him; an unprivileged communication to a third person; fault (negligence or greater) on the part of the publisher; and resulting injury. Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559. Thus, Mr. Melder must prove that Sears, "with actual malice or other fault, published a false statement with defamatory words which caused [him] damages." Sassone v. Elder, 626 So.2d 345, 350 (La.1993).
Statements that accuse a person of criminal conduct are defamatory per se. Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196, 198 (La. 1980). Publication includes any nonprivileged communication of defamatory words, written or oral, and it renders a defendant liable for republication that naturally flows from the author's act. Landrum v. Bd. of Comm'rs of Orleans Levee Dist., 95-1591, p. 11 (La.App. 4 Cir. 11/27/96), 685 So.2d 382, 390.
Mr. Melder claims in his petition that Sears published defamatory words about him when it completed a "Reason for Leaving" form and included it in his permanent personnel file. The form stated, "Documented dishonesty. Cash theft by manipulation of detail." Sears also completed a "Separation Notice Alleging Disqualification for Unemployment Benefits." A copy of that form was also placed in his personnel file, and a copy was supplied to the Louisiana Office of Employment Security. It stated, "Discharged: Cash theft by manipulation of detail." Sears also completed an insurance proof of loss form that noted, "Employee Theodore Melder, over a period of eleven months, devised and executed a plan to defraud Sears of cash. He would fraudulently write credit checks, sign `customers' names and use them to cover cash shortages which would result from his `till tapping.'" Lastly, Mr. Melder alleges that Sears republished the defamatory words, either through Mr. Carriere or Officer Bolline, because within days of the incident, everyone in the store knew about the incident.
Sears does not deny that it completed both the "Reason for Leaving" and "Separation Notice" forms and placed them in Mr. Melder's personnel file. However, Sears denies that anyone other than Mr. Melder ever saw the forms, so that publication did not occur.
Mr. Melder offered the affidavit of Glen Gilyot to support his assertion that co-workers knew about his arrest and subsequent dismissal because of some action on *999 the part of Sears. Mr. Gilyot attested that he was working in the adjacent department the night of Mr. Melder's arrest. Some time after Mr. Melder was called to the security department, another co-worker, whose name Mr. Gilyot could not recall, told him that Mr. Melder had been taken from the store in handcuffs. Mr. Gilyot stated that the rumors about Mr. Melder's arrest were rampant, but that was not unusual following such an incident. Mr. Gilyot did not state that he had personally seen Mr. Melder's personnel file, or that anyone in management had discussed the incident with him.
Mr. Melder's deposition testimony and affidavit also were submitted as proof of publication. He stated that a former co-worker, with whom he had lunch after his acquittal, told him that she had been told by a division manager not to associate with Mr. Melder when he was in the store. He does not state whether this co-worker was given any reason why she should not associate with him. This affidavit and deposition testimony, like that of Mr. Gilyot, is based on hearsay.
Mr. Melder has not offered any admissible evidence that would support his allegations of publication of the "Reason for Leaving" or the "Separation Notice" forms.
Mr. Melder also argues that Sears published the defamatory words when it supplied a copy of the "Separation Notice" to the State in connection with his unemployment benefits hearing, and when Mr. Carriere testified at the hearing that Mr. Melder was guilty of theft. Sears counters that such actions are protected by a qualified privilege between an employer and the Office of Employment Security.
In Williams v. Touro Infirmary, 578 So.2d 1006, 1010 (La.App. 4 Cir.1991), this Court discussed the qualified privilege defense:
Under a qualified privilege defense certain statements which might otherwise be deemed defamatory are protected because the circumstances of the communication show an underlying public policy incentive for protection. In effect, assertion of a qualified privilege amounts to rebuttal of the allegation of malice. The public's interest and social necessity mandate that an employer not be unreasonably restricted when required to provide information for a state agency to determine in a quasi-judicial proceeding whether a terminated employee should receive unemployment benefits. The employer must be free to make a complete and unrestricted communication without fear of liability in a defamation suit even if the communication is shown to be inaccurate, subject to the requisites that the communication is in good faith, is relevant to the subject matter of the inquiry and is made to a person (or agency) with a corresponding legitimate interest in the subject matter.
We agree that the qualified privilege defense applies to the facts of this case. Thus, it is Mr. Melder's burden to prove that Sears was in bad faith in connection with its communication with the Office of Employment Security. Mr. Melder argues that bad faith is established because Mr. Carriere accused him of theft based on flimsy suspicions that were inadequately investigated, and then continued to accuse Mr. Melder after he was acquitted.
As discussed above, although Mr. Melder was acquitted, Sears had probable cause to believe he had committed a theft. When Mr. Carriere asked for cooperation in the investigation Mr. Melder refused, which resulted in the termination of his employment as well as his arrest. The accusations by Sears after Mr. Melder's acquittal were made in the context of an unemployment compensation hearing arising from that termination. We thus find that Mr. Melder has failed to produce any evidence that Sears was in bad faith in its communications to the State.
Finally, Mr. Melder claims that Sears has maintained the false information in his personnel file and that his *1000 file is available for anyone to see, with Sears' permission. He also claims Sears has communicated defamatory information to prospective employers, making it impossible for him to obtain employment. He, however, has offered no proof to support the claim that anyone other than the Sears' personnel involved in this investigation has seen his file. In addition, when Mr. Melder was asked at his deposition if he knew of any prospective employers that refused to hire him based on information received from Sears, he stated that he knew of only one. In that case, he said, an insurance agency indicated that because Sears merely furnished his dates of employment, rather than a recommendation regarding his skills and abilities, the agency was not interested in hiring him. However, we find nothing defamatory in the information provided by Sears.
Sears has effectively negated essential elements necessary to Mr. Melder's claim for defamation, and Mr. Melder has failed to provide any factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Therefore, summary judgment was proper on this claim.
D. Invasion of Privacy:
Louisiana courts have defined the right of privacy as "the `right to be let alone' or `the right to an "inviolate personality."'" Landrum, 95-1591 at p. 14, 685 So.2d at 392. This right embraces four different interests, each of which may be invaded in a distinct manner: (1) the appropriation of an individual's name or likeness for the use or benefit of the defendant; (2) an unreasonable intrusion by the defendant upon the plaintiff's physical solitude or seclusion; (3) publicity that unreasonably places the plaintiff in a false light before the public; and (4) unreasonable public disclosures of embarrassing private facts. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388 (La.1979); Young v. St. Landry Parish Sch. Bd., 95-1480, p. 3 (La.App. 3 Cir. 5/1/96), 673 So.2d 1272, 1275.
Violation of the right of privacy is actionable only when a defendant's conduct is unreasonable and seriously interferes with another's privacy interest. Jaubert, 375 So.2d at 1389. It is not necessary to prove that the defendant acted with malicious intent. Id. A determination of whether the defendant's actions were reasonable is made by balancing the interests of the plaintiff in protecting his privacy from serious invasions with the defendant's interest in pursuing his course of conduct. Id. A defendant's conduct is reasonable and non-actionable, even though it may slightly invade plaintiff's privacy, if the action is properly authorized or justified by the circumstances. Parish Nat'l Bank v. Lane, 397 So.2d 1282, 1286 (La. 1981).
Mr. Melder claims that Sears committed two of the four types of actionable invasions of privacy. He asserts first that Sears publicized its accusations against him, unreasonably placing him in a false light before the public as well as his former co-workers; and secondly, that Sears unreasonably intruded upon his solitude and seclusion by interfering with his social relationships. These claims are based primarily upon Sears' purported instructions that its current employees were not to associate with Mr. Melder.
The only evidence offered to support this claim is Mr. Melder's affidavit and deposition testimony, previously discussed, recounting his conversation with his former co-worker. Mr. Melder has offered no admissible evidence that Sears advised the co-worker not to associate with him. Furthermore, Mr. Melder testified that the co-worker continued to associate with him, despite the instruction from Sears' management. Thus, even had the co-worker's affidavit been offered, Mr. Melder has admitted that there was no actual interference with his social relationships.
*1001 Mr. Melder also claimed at his deposition that his privacy was invaded when, upon entering the Sears' Lake Forest store, he overheard a manager tell the Security Department to keep him under video surveillance. However, in view of Mr. Melder's apparent awareness that Sears had video cameras throughout the store and that all customers were subject to monitoring, this allegation is insufficient to establish an actionable invasion of privacy.
Again, the evidence presented is insufficient to establish that there is a genuine issue of material fact precluding summary judgment on the invasion of privacy claim. The trial court correctly dismissed this claim.
Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
NOTES
[1] Mr. Carriere was murdered on the Sears' loading dock sometime after Mr. Melder's criminal trial, but before the subject motion was heard.
[2] At his deposition, Mr. Melder explained that he refused to cooperate because, based on a few prior contacts with Mr. Carriere, "I didn't like the way he worked .... his work was very poorly done."
[3] Because we find probable cause for the arrest, we need not address Mr. Melder's argument that Sears is liable on the basis that Officer Bolline was acting as its employee, rather than the City's, at the time of the arrest.
[4] Mr. Melder testified that although Sears' policy required customers seeking a cash refund to take the credit slip to the cashier window in customer service, the store tolerated the practice of completing a cash refund in the department involved when customer service was busy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1886990/ | 316 So.2d 16 (1975)
John J. BORDLEE, Sr.
v.
PAT'S CONSTRUCTION COMPANY, INC.
No. 6904.
Court of Appeal of Louisiana, Fourth Circuit.
July 8, 1975.
Sam J. Chauppette, Chauppette, Genin, Mendoza & Parent, Marrero, for John J. Bordlee, Sr., plaintiff-appellant.
Roberts, Sanders & Perlis, Sharon A. Perlis, Metairie, for Pat's Construction Co., Inc., defendant-appellee.
Before SAMUEL, BOUTALL and SCHOTT, JJ.
BOUTALL, Judge.
This case involves an alleged loan of money by plaintiff, John J. Bordlee, Sr. to defendant, Pat's Construction Company, Inc. Defendant contends a loan was never made and the trial court granted judgment in favor of defendant dismissing plaintiff's suit. Plaintiff appealed.
Defendant corporation is a construction company in the business of building jetties and marine structures. Plaintiff was the vice-president and general manager of this corporation, handling all of its business operations. The record shows the following undisputed facts: The corporation was in *17 questionable financial condition and so somewhere around May 1, 1972 plaintiff offered to advance the company money to meet its payroll. Mrs. Myrtle Bertucci, president of Pat's Construction Company, declined this offer telling plaintiff she would raise the money herself. On May 3, 1972 Mrs. Bertucci deposited $8,000.00 to the company's account. This money came from a loan made by Mrs. Bertucci's brother-in-law.
From this point on the facts are in dispute. On May 19, 1972 a deposit of $8,000.00 in cash was made to the company account by plaintiff. The source of this deposit is the dispute around which this case arises. Plaintiff contends that $6,800.00 of the cash deposit was his money loaned to the company with the consent of Mrs. Bertucci.
Plaintiff testified that on May 16 a construction job at Grand Isle, La. was completed by the corporation and upon his return to the main office he once again discovered that the company was in financial straits. He states that on May 18, at a meeting between himself and Mrs. Bertucci at the main office, he again offered to loan the company some money to carry it along until the final payments were made on the Grand Isle job. Plaintiff testified that Mrs. Bertucci accepted this offer. Plaintiff further asserted that no one else attended this meeting and no note or document was made to evidence this loan. The only supporting evidence is that on May 19 currency in the amount of $8,000 was deposited as evidenced by bank records and it is not denied that plaintiff made the deposit. It should also be noted that the carbon copy of the deposit slip was altered by plaintiff to show that $1,200.00 of the cash deposit was company money and $6,800.00 was a loan from himself to the company.
Plaintiff accounts for the source of the $8,000.00 in the following manner: $1,200.00 was cash from the sale of two propellers owned by the company. He asserts that the sale was made on May 18 and that he received a check which he immediately cashed, receiving twelve one hundred dollar bills for the check. The remaining $6,800.00 was sixty-eight one hundred dollar bills that he had been keeping at his house since January of 1972. Plaintiff testified that he had such a large sum of cash because he had personally signed a bond in favor of the State of Louisiana for completion of the Grand Isle job. He then proceeded to withdraw all his money from his three personal accounts so that if the company defaulted on the bond most of his personal assets could not be reached.
Defendant contends simply that no meeting occurred between plaintiff and Mrs. Bertucci on May 18 and that plaintiff never offered any money to defendant beyond the offer of May 1, which all parties agree was refused. As to the source of the $8,000.00 deposit of May 19 Mrs. Bertucci could not be positive as to its source, but stated that plaintiff was completely in charge of running the company and handling its books. It also appears that the company records reflect outstanding accounts receivable which could have been the source.
This case is governed by RCC articles 2232 and 2277 which deal with proof of obligations. RCC article 2232 places the burden of proof upon plaintiff to prove the existence of the loan and RCC article 2277 describes how he must prove it; that is that agreements involving more than $500.00 must be proved at least by one credible witness and other corroborating circumstances. We hold that plaintiff has failed to carry his burden of proof.
In all such civil matters plaintiff must carry the burden imposed upon him by a preponderance of the evidence. This simply means that viewing the evidence as a whole the existence of a fact is more probable than its nonexistence. Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (Supreme Court 1973); Marcotte v. Travelers Insurance Co., 258 *18 La. 989, 249 So.2d 105 (1971); Hanover Insurance Co. v. Jacobson-Young, Inc., 294 So.2d 564 (La.App.4th Cir. 1974).
In this case plaintiff was the only witness as to the existence of the loan. We agree with him that our courts have allowed the requirement of ". . . one credible witness . . ." to be satisfied by the plaintiff alone.[1] However, one witness is not enough to carry the burden of proof, other corroborating circumstances must be proven and it is here that plaintiff has failed. Dodd v. Schell, 207 So.2d 807 (La.App.4th Cir. 1968); Succession of Couder, 46 La.Ann. 265, 14 So. 907 (1894); Brady v. McWilliams, 19 La.Ann. 433 (1867).
The following circumstances lead us to believe that it is improbable that the $6,800.00 obligation ever existed: 1) Plaintiff claims that he and his son went to see Mrs. Bertucci some time after the alleged loan was made; defendant denies such a meeting. Plaintiff claims that this meeting was to demand payment of the loan and that he brought his son along solely as a witness. Yet, plaintiff's son did not testify at the trial. 2) Plaintiff's testimony as to the source of the disputed deposit hinged in large part on the fact that he claims the deposit was made in eighty one hundred dollar bills and he had lots of one hundred dollar bills at home. Upon cross examination plaintiff admitted that actually his wife withdrew a part of the money from his personal accounts and he couldn't truly testify that she made the withdrawals in one hundred dollar bills. Plaintiff's wife did not testify at the trial. 3) We find it unlikely that an experienced businessman, who was also the company bookkeeper, would loan $6,800.00 to a company he knew to be financially unsound and yet not get evidence of the loan in writing. 4) We find it unlikely that plaintiff, who was also vice-president and general manager, would make a large cash loan to the company without written evidence of security and then three days later resign and start a competing business shortly thereafter. 5) Plaintiff could not satisfactorily explain the alteration of the May 19 carbon copy deposit slip.
For the above reasons we affirm the judgment of the trial court. Plaintiff-appellant to pay all costs.
Affirmed.
NOTES
[1] The trial judge in his reasons for judgment did not directly rule on the credibility of plaintiff as a witness. He does state that the source of the $6800.00 was "merely the testimony of plaintiff", that this was denied by defendant, and ruled that plaintiff did not carry the burden of proof in that respect. It may thus be reasonably concluded that he did not find plaintiff to be completely credible. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2020687/ | 903 N.E.2d 1044 (2009)
Stephen M. HAY, Appellant-Plaintiff,
v.
Ronald BAUMGARTNER and Gloria Baumgartner, Appellees-Defendants.
No. 43A03-0810-CV-484.
Court of Appeals of Indiana.
April 9, 2009.
*1046 Brian L. Hoffer, Randy J. Spitaels, Kindig & Sloat, PC, Nappanee, IN, Attorneys for Appellant.
Stephen R. Snyder, Randall L. Morgan, Snyder Birch and Morgan, Syracuse, IN, Attorneys for Appellees.
OPINION
BARNES, Judge.
Case Summary
Stephen Hay appeals the trial court's order granting $13,488.19 in attorney fees pursuant to Indiana Trial Rule 65(C) to Ronald and Gloria Baumgartner. We affirm in part, reverse in part, and remand.
Issue
Hay raises multiple issues, which we consolidate and restate as whether the trial court abused its discretion in awarding the Baumgartners the full amount of attorney fees accrued during the litigation between the parties.
Facts
Hay and the Baumgartners own adjoining lots in Syracuse. Apparently, the previous owners of the respective properties shared a driveway. During 2005, both Hay and the Baumgartners built new homes and garages on their properties. Because the Baumgartners' construction included a new driveway, they began to remove portions of the old shared driveway in June of 2006.
On June 26, 2006, Hay filed a motion for a temporary restraining order ("TRO") and preliminary injunction to stop the Baumgartners from removing the old driveway. Hay simultaneously filed a complaint for permanent injunction claiming he had an irrevocable license to use the driveway. The trial court entered a TRO that day and set a hearing on the motion for preliminary injunction for July 21, 2006. On July 6, 2006, Hay paid a $15,000 security bond to the clerk. On July 20, 2006, the parties stipulated to converting the TRO to a preliminary injunction. The trial court entered a preliminary injunction and vacated the July 21, 2006 hearing. Instead, a trial was set for Hay's complaint.
The trial court held the bench trial on October 18, 2006. It denied the permanent injunction on November 29, 2006,[1] and Hay filed a notice of appeal. On December 26, 2006, Hay filed a motion to restore the preliminary injunction pending appeal. The trial court reinstated the preliminary injunction pending appeal on January 3, 2007, apparently without a hearing. According to the chronological case summary ("CCS"), a hearing on the matter was set and rescheduled but apparently never held. On appeal, this court affirmed the trial court, holding that Hay and his predecessors only had a revocable license to use the Baumgartners' driveway. See Hay v. Baumgartner, 870 N.E.2d 568 (Ind. Ct.App.2007), trans. denied.
Following the appellate opinion and a denial of transfer to our supreme court, the Baumgartners filed a motion to assess damages. The trial court held a hearing on that motion on July 28, 2008. It issued an order on August 8, 2008, for Hay to pay $14,257.96 to the Baumgartners. Of that figure, $13,488.19 represented the Baumgartners' attorney fees between June 26, 2006, and July 28, 2008. An additional $769.77 was included for the removal and *1047 replacement of a sprinkler system line.[2] Hay filed a motion to correct error on September 8, 2008, relying on a case handed down by this court on August 28, 2008, Ace Bail Bonds v. Government Payment Service, Inc., 892 N.E.2d 702, 706 (Ind.Ct. App.2008). The trial court denied Hay's motion to correct error. This appeal followed.
Analysis
Hay argues that the trial court's award of attorney fees is contrary to law and Trial Rule 65(C). We review the decision of a trial court to award or deny attorney fees for an abuse of discretion. Ace Bail Bonds v. Government Payment Services, Inc., 892 N.E.2d 702, 706 (Ind.Ct. App.2008), trans. denied. Trial Rule 65(C) provides:
No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of a governmental organization, but such governmental organization shall be responsible for costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.
"Where a temporary injunction is dissolved and not replaced by a permanent injunction, the enjoined party is generally entitled to compensation for the damages it incurred." Bigley v. MSD of Wayne Township Schools, 881 N.E.2d 77, 81 (Ind. Ct.App.2008), trans. denied. Attorney fees may be included in costs and damages under Indiana Trial Rule 65(C). Id. Indiana courts have explained the function of Trial Rule 65(C) as follows:
T.R. 65(C) is an exception to the American Rule, recognized in Indiana, which generally makes parties responsible for their own attorney fees. The reason for the exception is that preliminary injunctions do not require a full hearing on the facts of a case and, thus, there is a likelihood that an injunction may be wrongfully issued. The security contemplated by T.R. 65(C) is intended to protect and compensate a defendant for any damages incurred as a result of a wrongfully issued preliminary injunction.
National Sanitary Supply Co. v. Wright, 644 N.E.2d 903, 905 (Ind.Ct.App.1994). "A defendant's entitlement to attorney fees and costs under [Trial Rule 65(C)] arises when he proves that it has been finally or ultimately determined that injunctive relief was not warranted on the merits." Id. at 906.
Hay contends the Baumgartners are only entitled to the attorney fees they accrued while defending the original TRO.[3] That TRO was in place from June 26, 2006, until July 20, 2006, when it was converted to a preliminary injunction based on the parties' stipulation.[4] Hay maintains that Ace Bail Bonds clarified the use of Trial Rule 65(C) and made the Baumgartners' *1048 fee award contrary to law.[5]
In Ace Bail Bonds, Ace moved for a TRO and permanent injunction to enjoin Government Payment Services ("GPS") from issuing bail bonds. Ace Bail Bonds, 892 N.E.2d at 704. The trial court entered a TRO against GPS on March 27, 2003, which expired on April 7, 2003. GPS filed a counterclaim against Ace for malicious prosecution. On July 12, 2005, the trial court permanently enjoined GPS from issuing bail bonds in Indiana and denied GPS's counterclaim for malicious prosecution. GPS appealed and this court reversed the permanent injunction, but affirmed the denial of the malicious prosecution counterclaim. Id. at 707. Following our supreme court's denial of transfer, the trial court sua sponte set a hearing on attorney fees. It awarded GPS a $2,500 bond and attorney fees in the amount of $88,564 that represented services from March 27, 2003, until June 18, 2007the date of the fee hearing. Ace appealed that award. Our court reversed the fee award and remanded for the trial court to determine only the fees GPS incurred in connection with its defense of the TRO. Id. We concluded that Ace was "liable to GPS only for the damages that occurred as the result of the wrongfully issued TRO." Id. It reasoned that "Trial Rule 65(C) is limited to restraining orders and preliminary injunctions." Id. We went on to explain:
The reason for requiring security arises from the expeditious manner in which the preliminary injunctive relief is issued and to the lack of a full hearing upon the facts. These considerations do not obtain in the case of a permanent injunction entered following a trial on the merits.
Id.
Following a trial on the merits of Hay's claims, his request for a permanent injunction was denied. Therefore, the "expeditious manner" requiring security under Trial Rule 65(C) did not arise because Hay and the Baumgartners already had a full and fair trial on the merits. Under Ace Bail Bonds, the only collectible Trial Rule 65(C) fees must have accrued while the Baumgartners were defending a TRO or preliminary injunction. See Ace Bail Bonds, 892 N.E.2d at 707 ("The same rationale does not extend to attorney fees and costs that are incurred in the defense of a permanent injunction entered after a full hearing.").
Although they are entitled to the fees accrued defending the TRO, Hay argues that the Baumgartners cannot collect fees for defending the preliminary injunction entered on July 20, 2006, because they stipulated to it. Hay is correct in pointing out that Indiana courts have not yet had the opportunity to consider the application of the fee provision of Trial Rule 65(C) when a defendant has stipulated to the entry of a preliminary injunction.
The CCS indicates that both parties stipulated to converting the TRO to a preliminary injunction. As a result of that stipulation, the trial court did not set a hearing for the preliminary injunction, but rather set a bench trial for the determination of Hay's complaint for permanent injunction. The Baumgartners argue that they were merely cooperating in the interest of judicial economy and that regardless of the parties' stipulation, it was ultimately *1049 the trial court's discretion to issue a preliminary injunction. The Baumgartners claim they were proceeding with Hay's $15,000 security deposit in mind, believing it was available to satisfy any applicable costs and damages. Nonetheless, we conclude that a stipulation to the entry of the preliminary injunction prevents the Baumgartners from now arguing that it was wrongfully in place between July 20, 2006, and November 29, 2006.
The Baumgartners acquiesced to the issuance of a preliminary injunction and cannot now say such injunction was wrongfully entered. See Stolberg v. Stolberg, 538 N.E.2d 1, 3, 5 (Ind.Ct.App.1989) (holding that party invited any error by agreeing, without objection, and acquiescing in procedure employed to reach an agreement during trial). Under the doctrine of judicial estoppel, a party may not assert a position in a legal proceeding inconsistent with one previously asserted. PSI Energy, Inc. v. Roberts, 829 N.E.2d 943, 950 (Ind.2005), abrogated on other grounds by Helms v. Carmel High Sch. Vocational Bldg. Trades Corp., 854 N.E.2d 345 (Ind.2006).[6] By stipulating to the entry of the preliminary injunction earlier in this litigation, the Baumgartners cannot now say it was wrongfully entered. "The purpose of judicial estoppel is to protect the integrity of the judicial process rather than to protect litigants from allegedly improper conduct by their adversaries." Smith v. State, 765 N.E.2d 578, 583-84 (Ind.2002). The Baumgartners chose to forego the hearing that could have resulted in a preliminary injunction and acquiesced to the automatic entry of the preliminary injunction; therefore, they cannot now challenge it as improper. The Baumgartners are not entitled to fees from the entry of the preliminary injunction on July 20, 2006, to the December 26, 2006, when Hay moved to reinstate the preliminary injunction.
The parties dispute the potential for awardable fees during yet another time period of this litigation. Shortly after the bench trial, the Baumgartners were subject to a reinstated preliminary injunction, specifically from January 3, 2007, until February 2, 2008. The Baumgartners contend that Trial Rule 65(C) entitles them to the fees accrued during this time period. Hay filed a motion to restore the preliminary injunction, specifically promising and reminding the trial court that "to the extent the Baumgartners are found to have suffered any monetary loss during the pendency of Hay's appeal, the rights of the Baumgartners in this regard are already secured by the $15,000.00 security posted by Hay with and still held by the Clerk of the Court." Appellee's App. pp. 3-4. Notwithstanding the existence of any bond, the fees accrued after the judgment related to the Baumgartners defending Hay's appellate attempt to reverse the denial of a permanent injunction. The substance of the appeal appears to have focused on whether a *1050 revocable or irrevocable license existed regarding Hay's use of the driveway. See Hay, 870 N.E.2d at 569. The attorney fees incurred by the Baumgartners during the appellate process do not relate to the defense of preliminary injunction; rather, the fees relate to defending a decision reached by the trial court after a full and fair hearing. We also note that no additional damages seem to have been incurred regarding the driveway during this time period. If any of the attorney fees during this time period related directly to responding to the restored preliminary injunction, however, they would be recoverable.[7]
Trial Rule 65(C) still entitles the Baumgartners to the costs incurred defending the TRO until July 20, 2006. The Baumgartners are also entitled to any fees directly related to dealing with the reinstatement of the preliminary injunction. We remand to the trial court for a determination of that total.
Conclusion
A portion of trial court's award of attorney fees is contrary to Indiana law and Trial Rule 65(C). We affirm in part, reverse in part, and remand for the trial court to calculate and enter an award consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
BAILEY, J., and MATHIAS, J., concur.
NOTES
[1] The trial court also apparently concluded that Hay had only a revocable license to use the driveway. The trial court's findings and conclusions in the matter are not a part of this record.
[2] Hay does not challenge this portion of the award.
[3] Hay contends the fees accrued during this time only amount to $300. However, it seems additional charges appear on the bill during this time period.
[4] "The difference between a preliminary and permanent injunction is procedural: a preliminary injunction is issued while an action is pending, while a permanent injunction is issued upon a final determination." Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164, 171 n. 4 (Ind.Ct.App.2008).
[5] Ace Bail Bonds was handed down approximately twenty days after the trial court ordered the damage award here. Hay filed a timely motion to correct error, referencing the Ace Bail Bonds case, which would have been applicable. See Grubnich v. Renner, 746 N.E.2d 111, 117 (Ind.Ct.App.2001) ("Clarifications of the law apply retroactively."), trans. denied.
[6] The Baumgartners make an argument that judicial estoppel requires bad faith on the part of the litigant, relying on Morgan Cty. Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind.Ct. App.2008), trans. denied. Upham quotes Robson v. Texas Eastern Corp., 833 N.E.2d 461, 466 (Ind.Ct.App.2005), trans. denied, for the proposition that "the dispositive issue supporting the application of judicial estoppel is the bad-faith intent of the litigant subject to estoppel." Robson relies on a federal decision in the bankruptcy context and both Robson and Upham deal with a litigant involved in the bankruptcy process. Those cases are distinguishable from the current matter. In any event, it is not simply judicial estoppel that prevents the Baumgartners from collecting fees based on the preliminary injunction to which they stipulated. The doctrine of invited error also prevents these contrary positions.
[7] It seems that two entries on the bill relate directly to the Baumgartners reacting to the request for and reinstatement of the preliminary injunctionthe entries on are January 2 and 3, 2007. The trial court should review these and award them to the Baumgartners if it finds they do relate to the reinstated preliminary injunction. Neither party discusses Trial Rule 62(C), which specifically addresses the reinstatement of an injunction pending appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2077703/ | 788 A.2d 1002 (2001)
CW, Appellant
v.
LV and GV, Appellees.
Superior Court of Pennsylvania.
Argued April 4, 2001.
Filed November 26, 2001.
*1003 William L. Stang, Pittsburgh, for appellant.
Gino F. Peluso, Lower Burrell, for L.V.
Joseph P. Covelli, Pittsburgh, for G.V.
Before: DEL SOLE, President Judge, EAKIN and BROSKY, JJ.
EAKIN, J.:
¶ 1 CW appeals from the order granting the preliminary objections of GV and dismissing CW's custody complaint. We affirm.
¶ 2 The trial court has set forth the facts:
CW filed a complaint for partial custody on June 19, 1998, after claiming that LV, Defendant, hereinafter "Mother", was no longer allowing him to see BV, date of birth 9/1/88, hereinafter "Child". Mother filed an answer to Complaint for Partial Custody on [sic] August 6, 1998, denying CW's allegations that he is the father of Child and asserting that the Father is GV to whom she was married when the Child was born. Mother further denies that the Child has spent any significant time with CW. Subsequently, CW and Mother participated in the Generations Program.[1] On November 5, *1004 1998, since the parties completed mediation and custody was not resolved[,] a custody conciliation was scheduled before the custody conciliator on January 14, 1999. On said date the parties were unable to reach an agreement due to the issue of paternity. The case was, in turn, set for conciliation before this member of the court on March 8, 1999. Father petitioned the court to enter an appearance and leave to file preliminary objections and contest jurisdiction on March 30, 1999. The court granted the petition and Father filed his Preliminary Objections on April 5, 1999. Mother filed an Answer. Thereafter, Mother and Father filed a Motion for Judgment on the Pleadings. After two and a half days of evidentiary hearings on August 9, November 23, 1999, and April 3, 2000, Preliminary Objections were granted and the partial custody complaint was dismissed. CW then filed this appeal. Mother and Father were married on June 13, 1970. They have three children, RV, age 25, SV, age 18, and BV, age 11. It is the paternity of BV that is in question.
Father, Mother and CW had known each other for approximately 30 years, and according to CW's testimony, he and Mother had an on-going sexual relationship around the time Child was conceived. He also testified that Mother had told him that she and Father were not engaged in sexual relations at the time Child was conceived, and that the two were in fact sleeping in separate quarters.
Further, CW testified that he regularly spent time with the Child throughout the first ten years of his life, including taking him to family reunions and holiday gatherings. He testified that he and Mother had an informal agreement whereby he made child support payments to Mother, and, in exchange, was able to spend time with him.
Father disputes that Mother ever slept anywhere but in their bed and denies any acknowledgment that CW is the father of Child. He completely contradicts all of CW's testimony. Mother's pleadings support the Husband's position.
Trial Court Opinion, 9/1/00, at 2-4.
¶ 3 Appellant raises the following issues:
A. Whether the [trial] court erred in refusing to permit the cross-examination of a party and presentation of rebuttal evidence at an evidentiary hearing.
B. Whether the [trial] court erred in placing the burden of proof on appellant to overcome preliminary objections without first requiring production of evidence to support the preliminary objections.
C. Whether the presumption of paternity may be applied to bar a party from seeking to establish that he is the father of a child, when application of that presumption would destroy an existing parent-child relationship.
D. Whether a party may be estopped from invoking the presumption of paternity when that party has engaged in conduct that has resulted in establishment of a strong parent-child relationship.
Appellant's Brief, at 4.
¶ 4 Our standard of review is well settled:
The paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors *1005 that legitimately affect the child's physical, intellectual, moral and spiritual well-being.
Swope v. Swope, 455 Pa.Super. 587, 689 A.2d 264, 265 (1997) (citations omitted).
¶ 5 We address appellant's third claim first:
A child conceived or born during the marriage is presumed to be a child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania; and the presumption may be overcome by clear and convincing evidence either that the presumptive father had no access to the mother or the presumptive father was physically incapable of procreation at the time of conception. However, the presumption is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage. [Further,] the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents.
Martin v. Martin, 710 A.2d 61, 63 (Pa.Super.1998) (citing Brinkley v. King, 549 Pa. 241, 701 A.2d 176, 179-80 (1997) (emphasis added)). The public policy behind the presumption of paternity is the preservation of families, which should not be destroyed by a dispute over the parentage of a child conceived or born during the marriage. Brinkley, at 180. A third party should not be allowed to attack the integrity of a functioning marital unit, "based on public policy that children should be secure in knowing who their parents are." Id. If a person has acted as a father and bonded with a child, the child should not be required to suffer the potentially damaging emotional trauma that may come from being told his father, who he has known all his life, is not in fact his father. Id.
¶ 6 BV was born into an intact marriage of 29 years. During the hearing, the trial court stated:
An intact family is a family that is a functional family; let's put it that way, as opposed to a dysfunctional family. When a child lives in a household and has two parents there on a regular, recurring basis and who interacts with each other on a daily basis. And with all the normal things that go on in families, the discipline, communication, the making of meals, going to bed at night, getting up in the morning. And interaction with other community things; church, extended family.
N.T. Hearing, 4/3/00, at 10.
¶ 7 The record shows GV has played an active role in BV's life, and held him out to the community as his son. Together, they became involved in soccer, tee-ball, and cub scouts; in response, the community considered GV BV's father. Activities include bathing BV, making dinners and acting as primary caregiver. There is an intact family to preserve, one that the trial court properly determined shall not be disturbed by allowing the intervention of appellant to cause further detriment to BV and the family as a whole.
¶ 8 The party attempting to rebut the presumption has the burden of proof. Traditionally, the presumption of paternity can only be overcome by proving a husband did not have access to his wife, or was sterile or impotent during the time of conception. Martin, supra, at 62 (citation omitted).
¶ 9 Appellant relies on Ambrose v. Cross Creek Condominiums, 412 Pa.Super. 1, 602 A.2d 864, 869 (1992) for the proposition the burden of proof should be placed on GV to support his preliminary objections before appellant answers such objections. Ambrose was a slip and fall case; it did not involve the presumption of paternity or *1006 a custody issue. The present case concerns the presumption of paternity, a hurdle appellant must overcome. A substantive presumption is not avoided merely because of the procedural stage of the case. As the trial court properly placed the burden of proof on appellant, see Martin, supra, appellant's second claim fails.
¶ 10 The trial court did not err in refusing to permit the cross-examination of GV, or presentation of rebuttal evidence by appellant at the evidentiary hearing. As appellant failed to present any evidence to rebut the presumption of paternity, the trial court could well have ended its inquiry once appellant rested. After GV testified he never lacked access to his wife during the period of conception, was neither sterile nor impotent, and is listed as father on BV's birth certificate, the trial court stated the evidence more than rebutted appellant's testimony. The court further stated GV had produced enough evidence to prove the existence of an intact family. Relying on the presumption of paternity, the court precluded appellant from having further standing on the issue of paternity. As appellant failed to rebut the presumption in his primary presentation, there is no error in refusing to let him attempt to meet his burden in rebuttal.
¶ 11 Regarding appellant's final claim, we reiterate: "the presumption [of paternity] is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage." Martin, supra, at 63. GV proved the existence of an intact marriage. As a result, "[t]he interest of [appellant] pales in comparison to the overriding interest of the presumed father, the marital institution and the interest of the Commonwealth in the family unit." Id., at 65. Further, "if the family remains intact up to and beyond the birth of the child, despite evidence that rebuts the presumption of paternity, estoppel will apply ...." Amrhein v. Cozad, 714 A.2d 409, 412 (Pa.Super.1998). The V's were married before and after the birth of BV and remain married. Accordingly, appellant cannot rely on the presumption of paternity to support his standing; the presumption is exactly what bars him from disturbing this intact family.
¶ 12 Because the trial court committed no errors of law and appellant did not rebut the presumption of paternity, we affirm the order granting the preliminary objections of GV and dismissing appellant's complaint.
¶ 13 Order affirmed.
NOTES
[1] Generations is the Allegheny County education/mediation-orientation program which each party in a custody action must attend. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1832371/ | 753 So. 2d 269 (1999)
MOSSY MOTORS, INC., Roy J. Mossy, Mary Lou Christovich and Lyons-New Orleans, Inc.
v.
The SEWERAGE AND WATER BOARD OF the CITY OF NEW ORLEANS, Pepper and Associates, Inc., C.R. Pittman Construction, et al.
No. 98-CA-0495.
Court of Appeal of Louisiana, Fourth Circuit.
May 12, 1999.
Writ Denied October 29, 1999.
*272 Miles P. Clements, Kenneth A. Mayeaux, Michael R. Phillips, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, Louisiana, Attorneys for Plaintiffs/Appellants.
Ira J. Rosenzweig, C. Theodore Alpaugh, T. Gavin Hoppe, Smith Martin, New Orleans, Louisiana, Attorneys for Defendant/Appellant.
Robert I. Siegel, William M. Blackstone, Hoffman, Siegel, Seydel, Bienvenu & Centola (APLC), New Orleans, Louisiana, Attorneys for Defendant/Appellant.
Court composed of Judge ROBERT J. KLEES and Judge MOON LANDRIEU and Judge JAMES F. McKAY, III.
JAMES F. McKAY, III, Judge.
The defendant, Sewerage and Water Board of the City Of New Orleans, appeals a judgment in favor of Mossy Motors Inc., after a bifurcated trial on the merits in April of 1997. According to the law, "[n]o suit against a political subdivision of the state shall be tried by a jury." La. R.S. 13:5105. Therefore, the trial of this matter was bifurcated with the liability of the Sewerage and Water Board determined by the trial judge while the issue of the other defendants, Pittman Construction Company and Pepper and Associates, was determined by a jury.
STANDARD OF REVIEW
In the instant case the judge and jury came to different conclusions on the issues of liability and damages. The jury verdict and the trial court's judgment against the state entity, the Sewerage and Water Board, are irreconcilable and should be reviewed de novo. The trial court found the Sewerage and Water Board liable on a theory of strict liability, because its actions resulted in inverse condemnation (a constitutional/constructive taking). The trial court also dismissed the mental anguish claim of Roy Mossy Sr. Conversely, the jury allocated fault among all three of the defendants and accepted the mental anguish claim of Roy Mossy Sr., and awarded him damages.
In a bifurcated trial, where the judge and jury come to different conclusions on the issues of liability and damages, the appellate court must make an independent review of the record... without according any weight to the conclusions of either the jury or the trial judge. Carr v. City of New Orleans, 626 So. 2d 374, 376 (La.App. 4 Cir.1993) Writ denied, 94-0062 (La.3/11/94), 634 So. 2d 398. This Court's rule mandating an independent review in this case derives from the Louisiana Supreme Court's decision in Thornton v. Moran, 343 So. 2d 1065 (La.1977). In that case the Louisiana Supreme Court reviewed the decision by the First Circuit affirming inconsistent conclusions of the *273 judge and jury. The Supreme Court reversed the appellate court and remanded it back to the court of appeal "to resolve the differences in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based upon the record." Id. at 1065. Accordingly, we review this matter de novo.
PROCEDURAL HISTORY
When reviewing the judgments of the trial court and the jury verdict we analyze each finding on its own.
The jury found Pepper and Associates, Pittman and the Sewerage Water Board negligent in causing property damage and business related interruption at Mossy Motors. The jury apportioned fault at fifty percent (50%) to Pepper and Associates, forty percent (40%) to the Sewerage and Water Board, and ten percent (10%) to Pittman Construction. The jury determined that four million dollars ($4,000,000.00) would compensate Mossy Motors for these damages. The jury also found Pepper and Associates and the Sewerage and Water Board were negligent in causing unreasonable delay during the construction. The jury awarded one million dollars for this item of damage and apportioned fault thirty percent (30%) to Pepper and Associates and seventy percent (70%) to the Sewerage and Water Board. Additionally, the jury found Pepper and Associates forty-five percent (45%) at fault, Pittman Construction ten percent (10%) at fault and the Sewerage and Water Board forty five percent (45%) at fault for the negligence on the claim of mental anguish by Roy Mossy, and awarded him two hundred and fifty thousand dollars ($250,000.00).
On June 17, 1997, the trial court signed a written judgment confirming the jury award against Pepper and Associates, Pittman Construction, and their respective insurers. This judgment is now moot due to the dismissal of the appeal against all other defendants except the Sewerage and Water Board.
Also on June 17, 1997, the trial court rendered its judgment along with written reasons against the Sewerage and Water Board. The trial court found the Sewerage and Water Board liable for damages in the amount of three million two hundred and forty-seven thousand seven hundred and nineteen dollars ($3,247,719.00). The trial court based this award on two million forty-seven thousand and seven hundred and nineteen dollars ($2,047,719.00) for out-of-pocket expenses due to construction plus one million two hundred thousand ($1,200,000.00) for damage to Mossy Motor's service building. The court also found Sewerage and Water Board liable for one million dollars ($1,000,000.00) for financial harm or business interruption to the dealership totaling four million two hundred forty-seven thousand seven hundred and nineteen dollars ($4,247,719.00). Further, the Trial Court dismissed Roy Mossy's claim for mental anguish, without reason. Finally, the trial court dismissed the cross claim of the Sewerage and Water Board against Pepper and Associates and Pittman Construction.
FACTS
The Sewerage and Water Board entered into a contract, in accordance with the Louisiana Public Bid Law, with C.R. Pittman Construction Company, as a contractor, and Pepper and Associates, Inc., as an engineer, to perform certain design improvements to drainage Pumping Station # 1 located on South Broad Street in New Orleans. The plaintiffs automobile dealership was located near the construction site on South Broad Street. The damages took place during Phase II of the project, which consisted of demolition, and replacement of an underground concrete structure adjacent to Pumping Station No. 1 known as the "suction basin."
The Board knew as early as 1975 that there was a contamination problem with the construction site but failed to act. Previously, there had been a city-owned gasoline/service station on the site adjacent *274 to the Mossy property and construction site. The soil there was contaminated with gasoline. Consequently, the entire project was impeded in order to comply with environmental regulations. The problem was that the project had already begun and its intrusive effects were only perpetuated by this dilatory action by the Sewerage and Water Board.
Additional delays occurred during the construction. In order to demolish and replace the underground suction basin, an earth retaining wall was constructed to encircle the suction basin and form a barrier against the surrounding earth. This wall was generally referred to as a temporary earth restraining structure (TERS) or a cofferdam, which Pittman Construction Company was responsible for designing and Pepper and Associates was responsible for constructing. Because of numerous adjustments made to the design, there developed an inordinate amount of delay. This further impacted the plaintiffs business, not the least of which was the economic loss of business.
There was also damage caused to the plaintiffs buildings because of the nature of the construction. In particular "dewatering" or "deep well pumping," a process involving pumping out underground water from the construction site, lowered the water table in the area causing settlement or subsidence of the ground resulting in structural damage and creating a safety hazard to the surrounding buildings of Mossy Motors. A report acquired by the Board from Eustis Engineering Co., a soil consultant, warned that the dewatering process could cause such damages to the adjacent property.
The showroom and offices were ultimately condemned on March 14, 1996, by the Department of Safety and Permits as being a "public nuisance," thereby forcing the business to be moved into trailers. Albeit there had been some sinkage prior to the construction, the sinkage escalated after the construction began. Doors would not close and cracks appeared in the walls and floors, creating more than a mere inconvenience to the plaintiff.
Mossy encountered further problems due to changes in the building code and the building requirements of General Motors Corp., which held the right of approval of any new construction. Consequently, the former structures were replaced with several smaller buildings as dictated by General Motors. The new construction provided the same square footage at a cost comparable to a literal restoration of the former building. Replication was impossible. It would have been impossible to replicate the prior structures to pre-construction conditions without a total restoration and rebuilding of the entire complex due to the change in building codes and requirements of General Motors.
It was the Sewerage and Water Board's decision to use the dewatering method, despite less dangerous methods being available and the advice from several experts who apprised them of the likely consequences. The manner in which it handled the removal of contaminated soil on nearby property owned by the City of New Orleans was imprudent, impracticable and dilatory. This decontamination process resulted in delays in the project further impacting plaintiffs damages.
STRICT LIABILITY
We find the defendant liable to the plaintiff under a theory of strict liability pursuant to La.C.C. art. 667. The doctrine of "sic utere tuum ut alienum non laedas" requires an owner to use his property in such a manner as not to injure another. Haworth v. L'Hoste, 95-0714 (La.App. 4 Cir. 11/30/95), 664 So. 2d 1335, writ denied, 96-0408 (La.3/29/96), 670 So. 2d 1235. Pursuant to La. C.C. art. 667:
Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.
*275 Any activity, which causes damage to a neighbor's property, obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor, which is relevant. Lombard v. Sewerage & Water Board of New Orleans, 284 So. 2d 905 (La.1973).
The defendant applies La. C.C art 668 to the instant case. The article states that one is not at liberty to make any work by which his neighbor's building may be damaged; however, one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor. We must determine whether the State's construction activity resulted in inconveniences that must be tolerated by the claimant under Article 668 or, rather, resulted in more serious inconveniences or interference that may be actionable under Article 667.
In Reymond v. State Through Dept. of Highways, 231 So. 2d 375, 384, 255 La. 425 (1970), the court found that damages which cause discomfort, disturbance, inconvenience, and even some financial loss as ordinary and general consequence of public improvements are not compensable, and are considered "damnum absque injuria" (loss without injury in the legal sense). Reymond involved the construction of an elevated highway, which denied the plaintiff an easy access to her home, obstructed her view, and caused her to suffer the noise from heavy traffic. Other homes in the area were expropriated by the state for the project, but the plaintiff's home was not. The Court held that the plaintiff could not recover for diminution in value caused by impaired accessibility, discomfort, and disturbance, but that she could recover for diminution in market value of her residence by reason of structural damages attributable to vibration from piledriving activity during the highway construction.
The Louisiana Supreme Court, in an unbroken line of precedent, has held that no showing of negligence is required to prevail on a claim for damages under Civil Code article 667, see, e.g. O'Neal v. Southern Carbon Co., 211 La. 1075, 1077, 31 So. 2d 216 (1947); Craig v. Montelepre Realty Co., 252 La. 502, 211 So. 2d 627, 631-32 (1968); Chaney v. Travelers Insurance Co., 259 La. 1, 16, 249 So. 2d 181, 186 (1971); Hero Lands v. Texaco, 310 So. 2d 93, 97 (La.1975); Butler v. Baber, 529 So. 2d 374, 381 (La.1988); Lombard v. Sewerage & Water Board of New Orleans, 284 So. 2d 905, 912 (La.1973). In Lombard, a case with facts similar to the instant case, the Louisiana Supreme Court praised the Board and its contractors for completing the project in a competent, workmanlike manner. Id. at 908. Nonetheless, the Louisiana Supreme Court held under Article 667 the Board would be liable for damages to the plaintiff's property caused by its construction activities, no matter how prudently they were done. Id. at 912. Applying these precepts to the evidence, we conclude that there has been a taking and damage to the plaintiff's property under Article 667. This amounts to more than the mere inconvenience to be tolerated under Article 668. Moreover, the Board, as proprietor, is responsible not only for its own activity, but also for that carried on by its agents, contractors and representatives with its consent and permission. See, Id.
This matter arose prior to the amendment of La. C.C.art 667.[1] We agree with the trial court that the pre-amendment law applies to the case at bar. Prior to the amendment to article 667, it was clearly within the discretion of the trial court to decide whether the dewatering *276 technique was an ultrahazardous activity. "The activity to be deemed `ultrahazardous' activity must be one that can cause injury to others, even when conducted with the greatest prudence and care." Updike v. Browning-Ferris Inc., 808 F. Supp. 538 (W.D.La.1992). The new definition by amendment defines an ultrahazardous activity legislatively, but, under the pre-amendment law, it was an easy leap between pile driving, explosives and dewatering. In the instant case other less hazardous methods were available, but not chosen by the Board. As a result of the defendant choosing this ultrahazardous mode of operation to remove subterraneous water, the plaintiff suffered severe damage to both his business and building structures. Therefore, we find that the Sewerage and Water Board is strictly liable to the plaintiffs for the damages sustained. Accordingly, we are in agreement with the judgment and reasoning of the trial court on the issue of strict liability.
INVERSE CONDEMNATION
Inverse condemnation is the taking of an owner's property by a State entity absent an expropriation resulting in a constitutional taking. The Declaration of the Right to Property in the 1974 Louisiana Constitution provides:
Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
Property shall not be taken or damaged by the state or its political subdivision except for public purposes and with just compensation paid to the owner or into court for his benefit.... In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss.
La. Const. Article I, § 4.
When attempting to analyze if the issue includes a public purpose we gain some insight into the theory of eminent domain from Reymond, supra. "Since a taking or damaging to property may in fact occur without expropriation proceedings by a public body through oversight or lack of foresight, there must be some proceedings whereby an owner may seek redress when his property is taken without the proper exercise of eminent domain. Such an action is often referred to as `inverse condemnation'." Thus, our Constitution does not simply require that the owner of condemned or damaged property be compensated with the market value of the property taken and severance damage to the remainder, but that he be "compensated to the full extent of his loss" and "placed in as good a position, pecuniary as [he] enjoyed prior to the taking." State Through Dept. of Highways v. Bitterwolf, 415 So. 2d 196, 199 (La.1982). Furthermore, the action for inverse condemnation is available in all cases where there has been a taking or damaging of property, where just compensation has not been paid, without regard to whether the property is corporeal or incorporeal. La. Const. of 1974, Art. I § 4; see also Ursin v. New Orleans Aviation Board, 506 So. 2d 947, 955 (La.App. 5th Cir.1987), judgment reversed, 515 So. 2d 1087 (La.1987).
In Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Service Co., 618 So. 2d 874 (La.1993), the church sued the gas company for damages arising out of a fire in an apartment complex owned by the church. The district court found for the church and limited its recovery to the amount expended to restore the building to its prefire condition reduced by depreciation. An appeal was taken to the Louisiana Fifth Circuit Court of Appeal where the district court ruling was affirmed. On certiorari, the Louisiana Supreme Court held that the church was entitled to recover the full cost of restoring the building not just replacement cost less depreciation.
*277 One injured through the fault of another is entitled to full indemnification for damages caused thereby. Coleman v. Victor, 326 So. 2d 344 (La.1976). In such a case, "[t]he obligation of the defendant... is to indemnify the plaintiff... to put him in a position that he would have occupied if the injury complained of had not been inflicted. Consequently, when property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage." Id. at 346.
Professor Walter Blessy, a civil engineer, testified as an expert in foundation engineering for the plaintiffs. Professor Blessy testified that the Mossy building was in equilibrium for some years. He explained that when a building in equilibrium for some years shifts, it usually occurs because of construction activities. Blessy opined that the soils at the Mossy site are susceptible to settlement and these soils would be affected by dewatering process. He also found 4½ inches of settlement from 1994 to 1996 in the front slab of the Mossy building and that from 1945 through 1993 the building had experienced a settlement of only 1½ inches.
Additionally, Blessy testified that there was a drawdown under the Mossy property in the spring of 1994. He described the condition under which ground water was being reduced under the Mossy building during that period. In his opinion the dewatering operation caused the settlement. He conveyed that there was absolutely no doubt in his mind that the dewatering caused the settlement experienced by Mossy.
On cross-examination, Professor Blessy was questioned regarding pre-construction photographs. He acknowledged that there was probably some settlement. But, again he reiterated that the building had been in equilibrium for approximately twenty years. He did not believe that the cracks, visible in the pre-construction photographs, threatened the life or the stability of the building, nor did he believe these cracks were significant. Blessy was also questioned about the renovations to the Mossy building in 1977. He explained that from 1977 through 1994, the settlement did not exceed 1¼ inches.
Walter Sherman, a geotechnical engineer was also called as an expert witness for the plaintiffs. He testified that when the ground water was drawn down at the pumping station, it was simultaneously drawn down on the Mossy property, causing immediate settlement under the Mossy buildings. In Mr. Sherman's opinion, the dewatering was improperly done. He said everyone should have taken measures to minimize damage from the dewatering system. Sherman made reference to the Eustis Engineering report of August 10, 1992, provided to the Sewerage & Water Board and Pepper & Associates. On page 12 of the report it is stated that "prolonged pumping of the dewatering system may result in subsidence of adjacent areas."[2] The Eustis report warns the Sewerage & Water Board and Pepper as follows:
"Because of the type of construction required, the soil conditions at the site, and the proximity of the existing pump station and other facilities, there can be no guarantee that vertical and lateral movements will not occur due to vibrations, sheeting/bracing and dewatering. Therefore, Sewerage & Water Board of New Orleans should be made aware of the liability associated with the project before proceeding with construction."
Defendant's expert, Ralph Junius, a civil-structural engineer, was critical of the 1977 construction at the Mossy site. In his opinion the building was improperly built on spread footings and, as indicated *278 by the pre-construction photos, was attempting to relieve itself.
Richard Burr, a geotechnical expert, also testified for the defendants. In his opinion, soils under the Mossy property were pre-compressed. Therefore, dewatering operations should not have had a dramatic effect on the Mossy property. He testified that drawdown of the aquifer caused by the pumping took much longer than indicated by Mr. Sherman. Mr. Burr indicated there should have been a lag of several months before the effect of the pumping was felt, not the immediate effect as testified by Mr. Sherman.
But the earlier Eustis report had warned the Sewerage and Water Board of the existence of poor soil conditions that could have detrimental effects to the plaintiff, after construction began.
Another defense expert, Mr. William Gwyn, Civil Engineer, testified that dewatering caused a small amount of settlement. In his opinion the dewatering did not cause the damages found by Blessy and Sherman.
Considering all of these experts, we find that the plaintiff proved by a preponderance of the evidence that the damage to his property, in particular the deep well pumping at the construction site, constitutes an inverse condemnation.
The record reflects that Mossy suffered substantial financial losses due to the destruction of their show room and the delay of the construction project. The economic losses that Mossy sustained are clearly compensable under traditional inverse condemnation analysis. In State, Through Dept. of Transp. and Development v. Chambers Inv. Co. Inc., 595 So. 2d 598 (La.1992), the Louisiana Supreme Court set out a three part test for claims involving "the taking and damaging of property rights." Id. at 603. In order to recover for inverse condemnation under the Chamber's test a plaintiff must show: 1) the plaintiff's claim involves a property right; 2) the plaintiff's property right was "taken or damaged in a constitutional sense;" and 3) the taking or damage was for a "public purpose."
In Chambers, the litigation arose out of the construction of an interstate highway. A large tract of land was expropriated including the entire 300-acre tract of land owned by the Chambers family. The family had considered developing the land for residential use. They abandoned this idea when they learned of the interstate plan. The construction was estimated to last for five years. The plaintiffs sought compensation for the land taken and the resulting severance damages for the taking of the land because their property effectively would be removed from development during the construction period. The plaintiffs lost their claim for past and future delays in residential development during highway construction. The Chambers court concluded that, where there is no allegation or evidence of personal injury or physical damage to property, a finding of liability under Article 667 "requires proof of the presence of some type of excessive or abusive conduct." Id. at 604.
DAMAGES
The defendants argue that the settlement at the Mossy site was due to poor soil condition. However, the Eustis report had warned them of the poor soil conditions at the site of the construction in their report of August 10, 1992. Yet, Pepper and Associates and the Sewerage Water Board, who had the ultimate authority to pick and choose the method of construction, elected to proceed with the construction plan. Pepper and Pittman were not responsible for choosing the method used to remove the subterraneous water. By law when they accepted the contract, they were required to follow the specifications demanded by the public entity. The Sewerage and Water Board demanded that they use the dewatering technique as opposed to surface pumping (sumping). This choice was made despite Pittmann's expert, Mr. Griffin, having recommended alternate methods, which posed less risk of *279 subsidence to neighboring structures. Limited sumping was employed on the project in order to remove surface water due to rainfall. However, damage to the plaintiff's property was caused by the more hazardous method utilized, in particular the deep well pumping. Although the deep well watering system employed was prudently done, it still caused the April 13, 1994, settlement at the Mossy site. Accordingly, we find the defendant strictly liable for the damages to Mossy. Under these facts and circumstances we agree with the trial court's finding the defendant 100% liable to the plaintiffs for damages sustained as a result of the actions of the Sewerage and Water Board. Accordingly, the Sewerage and Water Board is strictly liable for Mossy's damages.
Mossy has operated its family business at the same location for three generations. The business was personal to the Mossy family and was not a purely commercial enterprise. The defendants argue that the criteria laid out by Roman Catholic, Supra, is applicable only to purely non-commercial property. Such a rigid distinction is not made in Roman Catholic. In fact, the low-income housing property involved in that case was one that generated revenue for the archdiocese. In the instant case, Mr. Mossy is not a disinterested investor, but rather proprietor of a family owned business. "[U]nless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will in fact make the repairs, damages are measured only by the difference between the value of the property before and after the harm." Id. at 879-80. In the instant case the plaintiff has a personal reason and a specialized fact. They alone lost their grandfather status with General Motors; they alone had their building condemned by the city. The fact that the plaintiffs have a for-profit business, as is constantly mentioned by the defendant in their briefs, is irrelevant. A for-profit business deserves the same protection under the laws of this state as the non-profit businesses. The trial court properly ruled that the Sewerage and Water Board must compensate the owner for damages to his property. Just compensation requires that the property be restored to the condition it was in before the harm was done. The plaintiff could not repair the building to the pre-damage condition. In fact, the damage was so severe that the City's building inspector condemned the show room.
Additionally, the plaintiff had to comport with the new regulation imposed by General Motors, which they would otherwise not have had to because of being grandfathered in. When Mossy's building was condemned, General Motors had changed their requirements to approve new construction. The new more stringent requirements regarded not only the appearance, but the proximity and layout of new dealership buildings. Therefore, Mossy had no option but to construct a new separate showroom for the Pontiac showroom adjoining the new Oldsmobile showroom. Previously it had been located across the street. Mossy never claimed that its Pontiac showroom was demolished due to dewatering damage. Rather, the destruction of the Oldsmobile showroom and adjoining structures triggered the application of the General Motors requirements. To place the plaintiff back in his pre-damage situation and to follow the holding of Roman Catholic and its progeny, the only alternative was to rebuild and replace the prior existing edifices. Furthermore, the Building Code of New Orleans had changed since the renovations to the Mossy building in 1977. Due to the changes in the building code it was virtually impossible to restore literally the old structure.
SERVICE BUILDING
The service building brings additional concerns in light of Roman Catholic and the testimony of the experts. The judge awarded the plaintiff one million two hundred thousand dollars ($1,200.00.00) for the total reconstruction *280 of the service area. There is inadequate information in the record to justify this ruling. There was obvious damage to the plaintiff for which the defendant is responsible. Nevertheless, to replace totally/rebuild the service area would place the plaintiff in a better position than before the construction. This could be a windfall, which would inure to the detriment of the defendants because of the unqualified cost. As a general rule a plaintiff should be put in as good a position as before his property was damaged, but not a superior position. Lemon v. Fein, 467 So. 2d 548 (La.App. 4th Cir.), writ denied, 472 So. 2d 594 (La.1985).
Mr. Blessy, the plaintiff's expert admitted that he never stated that the service area had to be replaced or even repaired. Additionally Mr. Ken Meyn, an engineer retained by the plaintiff's attorney, stated that after his inspection of the service building in August of 1996, he determined the building's basic structural components were in generally good condition and were unaffected by the settlement. Mr. Blessy admitted that there was a settlement in the service area before April of 1994. In fact under cross-examination he admitted that during his calculations he failed to take into consideration the drainage grate which ran down the middle of the floor of the service area. In the record we have little documentation and testimony to support the damage and cost of the repairs for the service area.
The testimony concerning the cost of repairing the service area is that of Armand LeGardeur, plaintiffs construction cost expert who had done the repairs to the Mossy property in 1977-1978. He opined that if the service building had to be replaced, an estimated total replacement cost for the service building would be $1,280,000.00 based on a forty dollar per square foot in a thirty-two thousand square foot area. He qualified that this was based on a thirty to forty dollars per square foot basis to break out the slab, preserve the walls and roof, drive the pilings, raise the slab and twenty automotive lifts, and move electrical systems and sprinklers. On cross-examination neither the Board nor any of the other defendants asked any questions of Mr. LeGardeur; nor did the defendant offer any evidence of their own regarding the cost of repair to the service area or alternative methods of repair or damage valuations.
The Walker elevation survey of the Mossy property taken between May 5, 1994 and January 6, 1996 repeated elevation points at 180 points throughout the property. Points in the service area showed settlement similar to that sustained in public areas which were earlier condemned by the city. This survey indicated that settlement damage to the service area was of a progressive nature. Some settlement in the service area was even worse than in the body shop where the slab collapsed.
Mr. Vincent Sclafani, the service manager employed by Mossy for over 28 years, described the conditions in the service area after the dewatering began. He said that, as the settlement progressed, it was necessary continually to re-calibrate equipment throughout the service area. He described how the front-end rack sank 1¼ inches in one month. Additionally, the service entrance sinkage was causing mufflers to be taken off the cars of the customers. He estimated the settlements in 1994 were from one to three inches.
Sewerage and Water Board argues that Mossy is not entitled to recover for the service area because it has not actually conducted the repairs. However, Roman Catholic imposes no such requirement that tort victims can only recover for damages to their property that has been repaired before trial.
The lack of concrete evidence leaves little to support Mr. LeGardeur's estimates. The only factual evidence to support what actual damage was done to the service area were pictures of the service area, which reflect the significant damage to the walls and support beams in the roof. It appears from the allegations made by the *281 defendants in their briefs that the service area is to date in the same condition as it was at the time of the complained of damages. Therefore, we find insufficient information in the record to make a realistic determination on the cost to repair/restore Mossy's service area. Accordingly, we remand the matter for further hearings. The total award of four million two hundred and forty-seven thousand seven hundred and nineteen dollars ($4,247,719.00) to the plaintiffs is therefore reduced by 1.2 million dollars, the amount awarded by the trial court for the service area building.
LOSS OF BUSINESS
Lionel Batiste, Mossy's new car sales manager, testified that cracks began to appear in the walls and in the floors. Customers and employees began to complain. Soon thereafter fewer customers came because it appeared that Mossy was going out of business. In addition to the poor appearance, he also noticed that the construction caused a decline in sales. Customers that did come complained about long lines of traffic. Based on sales records, Mossy had lost 150 potential customers and had suffered a loss of between twenty and thirty new car sales each month. This in turn caused loss in the service department and fewer used car sales based on trade-ins.
Mr. Roger Bacon, Mossy's general manager who had worked for the company for over 24 years, testified it became harder to attract new car salesmen because of the lack of customers. This was exacerbated by having to conduct business in trailers.
Mr. William Legier, Mossy's accounting expert, qualified that the financial impact to Mossy was over six million dollars. The Board argues that in Chambers, in order to recover economic damages caused by construction and traffic disruption under inverse condemnation, a plaintiff must show some "abusive or excessive conduct" by the defendants. On the contrary, the Court in Chambers, made clear that "abusive or excessive conduct"requirements apply only in cases where there is no allegation or evidence of physical damage to property:
We are not prepared to say that, in all cases, an owner must prove an abuse of right of ownership before he may suppress or recover for a violation of Article 667 by a neighbor. But we think that in a case, such as the present one, in which there is no allegation or evidence of personal injury or physical damage to property, it is consistent with the principal of the Civil Code and our jurisprudence to require proof of the presence of some type of excessive or abusive conduct to hold a landowner responsible under Article 667.
Chambers, 595 So. 2d 598, at 604.
Unlike the plaintiff in Chambers, Mossy suffered particularized damages, including economic losses directly related to the destruction of its showrooms and offices, as well as those flowing from construction delays. Mossy experienced traffic cut-offs and diversions that resulted in impossible ingress and egress to their establishment. Its building became condemned by the city and was inoperable and was subjected to new stringent City building codes. Qualified salesmen were lost to other businesses from lack of sufficient business to warrant their employ. The service department suffered from the trickle down effect culminating in an insufficient number of new cars being purchased and fewer trade-in cars being available to service.
Finally, faced with losing its advantageous contract with General Motors, Mossy had no choice but to replace its existing buildings in order to retain the contract. This requirement would never have been imposed on Mossy because its old buildings were grand-fathered in by General Motors. However once new construction became necessary, Mossy was subject to General Motors's new building requirements. The Board's actions substantially interfered with Mossy's business resulting in a taking or damage in a constitutional *282 sense. This is not a mere inconvenience, but a specialized injury specific to Mossy; consequently, they are entitled to compensation for these injuries.
SOIL DECONTAMINATION
The trial court found the defendant's actions concerning the soil decontamination grossly negligent. We disagree in part. We agree that the defendant knew the delays were inevitable. The Sewerage and Water Board received an estimated cost of five million dollars ($5,000,000.00) for the soil cleanup. They knew delays would occur because the LDEQ required the cleanup prior to the construction beginning. Nevertheless, the Board went forward with the contracts and the construction project. Although, the defendant's expert, Mr. Meyers, testified that there were delays, he opined that the decontamination removal procedure was a justifiable delay. The defendants attempt to deny liability to the plaintiff for damages they knew were probable and anticipated. They were aware as early as 1992 in the Eustis Report that the soil conditions were poor and could not withstand the construction without collateral damage to Mossy.
The defendants attempt to characterize the decontamination project and the dewatering technique as two separate and distinct issues, but when aggregated and including the defendant's behavior as a whole, there results an inevitable damage to the plaintiff. The culpability rests with the defendant, the Sewerage and Water Board. That is the very reason for laws governing expropriation and inverse condemnation.
Additionally, Mossy presented evidence regarding the expenses resulting from damages incurred as a result of the construction of a new pumping station that consisted of: 1) trailer rental and moving expenses that Mossy incurred when it was forced to operate out of temporary facilities; 2) the cost of demolishing and replacing its showroom and offices in accord with new building codes and requirements imposed on Mossy by General Motors; and 3) the cost to repair settlement damage to Mossy's service area.
The plaintiff's additionally claim that the Board was responsible for the delay in the completion of the construction project. Extended interruptions had a devastating financial effect on Mossy. Mossy's business was severely impacted by the turmoil resulting from escalating property damage during the construction project. Mossy's expert accountant, Mr. Legier, quantified the financial impact on Mossy's business at over $6 million. Directly adverse to this opinion, the Board's expert, opined that Mossy had experienced no damage whatsoever as a result of either the loss of its showroom or the excessive constructive delays. Therefore, given the arguments and facts present before the trial court and the jurors, we agree with their determinations that there was substantial economic loss sustained by Mossy. After considering the entire record and the evidence presented at the trial on the merits, an award of one million dollars is both adequate and appropriate. Accordingly, we award the plaintiff Mossy one million dollars for economically sustained losses.
ATTORNEY FEES
The trial court based the attorney's fees on 1) Mossy's total recovery (both property damages and economic losses) against the Board and 2) the prejudgment interest awarded, the sum of which represents the reasonable attorney's fees that Mossy incurred. Pursuant to La. R.S. 13:5111:
A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as part of the costs of court, such *283 sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.
Regardless of language of statutory authorization for an award of attorney fees or the method employed by a trial court in making an award of attorney fees, courts may inquire as to the reasonableness of attorney fees as part of their prevailing inherent authority to regulate the practice of law. Rivet v. State, Dept. of Transp. and Development, 96-0145 (La.9/5/96), 680 So. 2d 1154.
The trial court's award of attorney fees is erroneous as it awards attorney fees of only twenty-five percent of the judgment. This case was quite complicated and undoubtedly required much time, effort, and skill on the part of the plaintiff's attorneys. The record before us lacks evidence to substantiate the amount of time actually expended to make a decision on what amount of attorneys fees should be awarded. The defendant has been deprived of his opportunity to have adequate discovery with regard to the experts' fees for reimbursements related to the trial. We therefore vacate the award of attorney fees and remand the matter to the trial court to take additional evidence as to the attorney fees actually incurred and assess and fix attorney fees in accordance with La. R.S. 13:5111 and factors enunciated herein.
CROSS CLAIM DISMISSAL
The trial court dismissed the Sewerage and Water Board's cross claim against Pittman Construction and Pepper and Associates. All parties had agreed that the cross claim would be tried after the trial. During the course of litigation the Board filed cross claims against C.R. Pittman and Pepper and Associates. The Board's cross claim alleged Pittman was contractually bound to indemnify the Board for Pittman's negligence. Prior to the trial, the parties agreed to submit for adjudication by the court (rather than the jury), all indemnity issues based on the evidence submitted at trial and the applicable law. In keeping with this agreement, Pittman, Pepper and the Board understood that the court would decide the indemnity issues at the conclusion of the case after the jury had rendered its verdict. Approximately one month after the trial, the judge rendered a judgment against the Board and dismissed the cross claims and denied the Board's claim for indemnity from Pittman and Pepper. There is nothing in the record to indicate that the parties expected to have a separate trial on the cross claims. The judge obtained all of the necessary information needed during the course of the four-week trial and was thoroughly familiar with the facts and the law surrounding the indemnity issues. The trial court made a well-founded decision to dismiss the cross claims, based on the law and the evidence presented at the trial.
Assuming arguendo that the trial court did err by dismissing the Board's cross claims without a separate hearing, the Board did not suffer any prejudice. La. R.S. 38:2216(G) clearly forbids a public entity such as the Board from requiring a contractor to provide indemnity for the public entities' own negligence or strict liability:
It is hereby declared that any provision contained in a public contract, other than a contract of insurance, providing for a hold harmless or indemnity agreement, or both,
1) From the contractor to the public body for damages arising out of injuries or property damage to third parties *284 caused by the negligence of public body, its employees, or agents, or
2) From the contractor to any architect, landscape architect, engineer, or land surveyor engaged by the public body for such damages caused by the negligence of such architect, landscape architect, engineer, or land surveyor is contrary to public policy of the state, and any and all such contract are null and void.
Louisiana law also clearly provides that a contractor cannot be required to indemnify an owner when the owner's liability is based on La.C.C. art. 667.
[I]t is the public policy of the state that the responsibility which may be imposed on [a]contractor under art. 667 of the Louisiana Civil Code shall be limited solely to the obligation of such...contractor...to act as to that of a surety of the owner. Nothing in this section shall be construed to relieve a contractor of any liability, which he may incur as a result of his own negligence or the improper performance of the work performed under the construction contract. La. R.S. 9:2773.
Two geotechnical engineers called as expert witnesses established that responsibility for damages for dewatering was the Board's. The Board should have either required a proper dewatering system, which would have provided a positive cutoff of the excavation (which was impossible since the Board required that the pumping station remain operable at all times), or the Board should have accepted responsibility for the consequences of the dewatering to neighboring properties. It was only at the insistence of the Board that the dewatering system be used as opposed to other alternatives. Plaintiff's structural engineer, Mr. Blessy, confirmed that the contractor must act in accordance with plans and specifications pursuant to La. R.S. 9:2771. Therefore, Pitmann cannot be required to indemnify the Board for the Board's own negligence or strict liability.
In the instant case, the Board's fault was determined by the trial court to be 100% based on theories of strict liability, inverse condemnation and gross negligence. The Board did not dispute that Pepper was its agent. Thus, any gross negligence on the part of Pepper is imputed to the Board.
Assuming arguendo that the indemnity provision in the contract between Pittman and the Board was for damages arising from Pittman's own negligence, the Louisiana statutes cited above supercede and no indemnification to the Sewerage and Water Board is possible. Therefore, we find no reason for the trial court to be reversed on the dismissal of the Sewerage and Water Board's cross-claims against either Pepper or Associates or Pittman Construction. Accordingly, the trial court's dismissal of the cross-claims is affirmed.
MENTAL ANGUISH AWARD
The appellants contest the trial court's dismissal of Roy Mossy, Sr.'s claim for mental anguish against the Sewerage and Water Board. The jury had awarded Mr. Mossy two hundred and fifty thousand dollars ($250,000.00), for his mental anguish claim; however, the trial court dismissed the claim.
It is well established in Louisiana jurisprudence that recovery for mental anguish/emotional distress from property damage is possible even without actual physical injury or a manifestation of the physical injury. Our Court in Gaynor v. State Farm Mut. Auto. Ins. Co., 98-CA-1374 (La.App. 4 Cir. 2/10/99), 727 So. 2d 1279, (citing Blache v. Jones, 521 So. 2d 530 (La.App. 4th Cir.1988)), citing a long line of Louisiana jurisprudence, identified the four situations when a mental anguish award can result from property damage. The situations are:
(1) When property is damaged by an intentional or an illegal act;
(2) When property is damaged by an act for which the tortfeasor will be strictly liable or absolutely liable;
*285 (3) When property is damaged by acts constituting a continuing nuisance;
(4) When property is damaged at a time in which the owner thereof is present or situated nearby and the owner experiences trauma as a result.
In the instant case the plaintiff Roy Mossy Sr., failed to provide any documented trauma, which arose out of the loss of his property. The facts of this case adequately distinguish those cases that awarded compensation for mental anguish, pain and suffering resulting for the loss of property. There are many factors to consider in determining the degree of mental stress suffered and whether the degree of stress engendered by the circumstances were beyond that which a reasonable person may expect to cope. The trial court was in the best position to witness and synthesize the materials presented in a trial on the merits.
We agree with the trial court that the plaintiff has failed to establish his burden of proof for this claim. We can find no plausible evidence in the record to support it.
CONCLUSION
We find that the Sewerage and Water Board is strictly liable for the damages sustained by the plaintiff and affirm the judgment in favor of the plaintiff and against the Sewerage and Water Board for two million, and forty seven thousand seven hundred and nineteen dollars ($2,047,719.00) for out of pocket expenses due to construction and one million dollars ($1,000,000.00) for business loss and interruption. We also affirm the trial court's dismissal of the cross claims and Mr.Mossy's claim for mental anguish. We vacate the amount awarded for the service area, one million two hundred thousand ($1,200,000.00) and remand for further determination on the issue of replacement/repair cost for the service area building as well as the issue of court cost and attorney's fees.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
LANDRIEU, J. concurs in part and dissents in part.
LANDRIEU, J. concurring in part and dissenting in part.
I concur in part and respectfully dissent in part.
The majority is correct when it remands the matter for a calculation of reasonable attorney fees and a reassessment of the loss caused by the damage to the plaintiffs' service building.
Considering the matter de novo, I do not find that the damage to the plaintiffs' showroom and service building caused by the dewatering process was a constitutional taking for which attorney fees are due under La.Rev.Stat. 13:5111, although the Sewerage & Water Board is liable for the damage it caused under the theory of strict liability.
In addition, I believe the majority misapplies Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Service Co., 618 So. 2d 874 (La.1993), in the amount of damages awarded for plaintiffs' loss of their showroom. "[C]ompensation...to the full extent of...loss" does not mean that plaintiffs are entitled to the cost of constructing a new facility irrespective of the size and quality of the new construction. While it would be unjust to plaintiffs to award only the depreciated value of the showroom, it is likewise unjust to require the defendant to pay for completely-new and upgraded facilities built on pilings, particularly where the destroyed showroom was built on spread footings rather than on pilings and the poor foundation was partly responsible for the settlement that necessitated the abandonment of the structure. In short, the award of $2,047,719 for "out of pocket expenses due to construction" is excessive.
NOTES
[1] La. C.C. art. 667, a strict liability article, was amended by Acts 1996, 1st Ex.Sess., No. 1 sec. 1, effective April 16, 1996, limiting ultrahazardous activities to pile driving or blasting with explosives. This is a substantive change in the law and cannot be retroactively applied.
[2] Previously there were other plaintiffs that experienced the same settlement problems. They ultimately settled out of court with insurance companies: Dooley's Lounge, Meyer's Auto Parts and Broadmore Animal Hospital. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1863884/ | 689 So. 2d 292 (1997)
PEOPLES GAS SYSTEM, INC. and People Gas Co. f/u/b/o American Home Assurance Co., Appellants,
v.
ACME GAS CORPORATION; Atlantic Gas Corporation; Boye's Gas, Inc.; City Gas Company of Florida; Delta Gas Company d/b/a Universal Gas Corporation; Dolphin Gas System; Home Gas Corporation; Metrogas Inc.; Miller Gas Company; Petrolane Gas Service; Public Gas Company; Siegal Gas Corporation; BJD Energy Development Company d/b/a Sun Gas Corporation of Florida; Weeks Bottle Gas and Appliance Company; Miramar Gas Company; Liberty Gas Company; Palm Gas Service Company; and Blau Gas of Florida, Inc., Appellees.
Nos. 95-1282, 95-1942.
District Court of Appeal of Florida, Third District.
January 15, 1997.
Rehearing Denied March 19, 1997.
*294 Nicklaus & Wicks, P.A. and William R. Wicks, Coral Gables, for appellants.
Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. and Gerard E. Pyszka, Miami, and Cindy J. Mishcon, North Miami Beach, for appellee Public Gas Company.
Kubicki Draper and Elizabeth M. Rodriguez, Miami, for appellees Acme Gas Corporation, Atlantic Gas Corporation, City Gas Company of Florida, Delta Gas Company d/b/a Universal Gas Corporation, Dolphin Gas System, Home Gas Corporation, Miller Gas Company, BJD Energy Development Company d/b/a Sun Gas Corporation of Florida, Weeks Bottle Gas and Appliance Company and Palm Gas Service Company.
Knecht & Knecht and Michael R. Kirby, Miami, for appellees Metrogas, Inc. and Siegal Gas Corporation.
Ponzoli, Wassenberg & Sperkacz, P.A. and Richard L. Wassenberg, Miami, for appellee Blau Gas of Florida, Inc.
Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A. and Steven E. Stark, Miami, for appellee Petrolane Gas Service.
Before NESBITT, JORGENSON and GREEN, JJ.
GREEN, Judge.
I
Peoples Gas System, Inc. and People Gas Co. f/u/b/o American Home Assurance Co. (collectively "Peoples Gas") appeal an adverse final summary judgment entered in *295 their third-party action for contribution and indemnity against appellees, all of whom were fellow members of a former emergency response system known as "Gas Central." Peoples Gas also appeals an award of attorney's fees and costs to two of the appellees, Metrogas, Inc. and Siegal Gas Corp., based upon Peoples Gas' rejection of their respective offers of judgment. We affirm the summary judgment as a matter of law based upon the undisputed facts set out below as well as the award of attorney's fees and costs to Metrogas, Inc. and Siegal Gas Corp.
GAS CENTRAL
Gas Central was a non-profit organization formed in the late 1960s by various independent gas companies throughout Dade and Broward counties. Its sole purpose was to provide qualified gas personnel after normal business hours to assist fire and police departments in emergency situations involving gas leaks. Essentially, Gas Central's members agreed to designate one member to field and respond to all incoming emergency calls from the fire and/or police departments in Dade and Broward counties. The responding gas company would then go to the scene and report to the police or fire officer in charge. The company would also secure the immediate vicinity from danger by turning off or disconnecting the gas supply. It was agreed, however, that the responding company would make no repairs unless its own gas line was involved. Rather, the responding company was specifically charged with the task of identifying the Gas Central member which owned the leaking gas line and immediately calling that company to the scene to make the necessary repairs.
The prerequisites for membership in Gas Central were that each member: 1) maintain its own liability insurance policy in an agreed amount; 2) execute a hold harmless agreement absolving the responding gas company from any liability incurred at the scene on behalf of the particular Gas Central member;[1] and 3) regularly provide the responding gas company with the names and phone numbers of its personnel members who were available to handle after-hours emergency matters. Whenever the designated company responded to an emergency scene with its personnel and equipment, it was entitled to bill the particular gas company whose line caused the leak for services rendered. The *296 amount paid to the responding company was not shared with the remaining Gas Central members.
Gas Central was an informal organization which had no officers and/or directors. Other than its agreed-upon procedures for handling emergency calls, it operated without bylaws, articles of incorporation, or a charter. Gas Central further had no budget, bank account, insurance policy, office space or letterhead of its own. Nor did the participating members fund the organization with the payment of any dues. In fact, the only things that Gas Central had were two hotline telephones with unlisted numbers for Dade and Broward counties. These unlisted numbers were made available only to the fire and police departments in Dade and Broward counties.
From 1973 until the date of the incident in question, Peoples Gas was the gas company designated to receive and field emergency Gas Central calls in its office from the fire and police departments. In addition to the unlisted Dade and Broward hotline telephones for Gas Central emergencies in its offices, Peoples Gas also had a telephone with a published number in the directory for the public to report gas leaks. Pursuant to Gas Central's established procedures,[2] Peoples Gas generally fielded approximately 15 to 18 Gas Central emergency calls per month. For its services, Peoples Gas routinely billed the individual Gas Central member involved when Peoples Gas dispatched its employees and/or equipment to the scene.
THE EXPLOSION
Peoples Gas' third-party action against appellees arose from a complaint filed by Thomas Googe against Peoples Gas and All State Gas Co. of Fla., Inc. d/b/a "All-Pro Gas" ("All-Pro") for injuries sustained by Googe on July 1, 1989 in a gas explosion at his home. The genesis of this incident actually began the day before, on June 30, 1989 when Googe's back yard neighbors, Diane and Daniel Riefler, detected a gas-like odor in their backyard. Although the Rieflers did not utilize gas or have gas lines on their property, they decided to call a local gas company to alert them of the odor.
Mr. Riefler then combed the yellow pages of the local telephone directory to find a gas company. He ultimately selected Peoples Gas because it "was in a bigger box than the rest." He telephoned the company to alert it of the gas odor. In response, Peoples Gas dispatched several of its employees to the Riefler residence. Upon their arrival, Peoples Gas' employees took readings from a combustible gas indicator ("C.G.I."), a device used to detect gas leaks. Peoples Gas' employees received what they perceived to be a dangerously high positive reading from the C.G.I. In fact, they classified the leak as "Grade 1" which they defined as "a leak that represents an existing or probable hazard to persons or property and that taking into account the location of the leak, requires prompt action until conditions are no longer hazardous." These employees also got even higher positive gas readings as they walked away from the back of the Rieflers' home toward the property line fence which separated the Rieflers' home and Googe's residence. Despite this fact, however, Peoples Gas' employees never extended their investigation into Googe's backyard.
*297 Rather, Peoples Gas employees dug a small ventilation ditch at the corner of the Rieflers' house where the high gas reading was obtained. Despite their classification of the leak as "Grade 1," Peoples Gas' employees did not evacuate the neighborhood or warn its residents of the dangerous reading. Nor did they notify the fire and/or police departments of their findings.
At some point, someone in the area informed Peoples Gas that All-Pro, another Gas Central member, had gas lines in the area. Peoples Gas notified All-Pro to come to the scene. Upon All-Pro's arrival to the scene, Peoples Gas' employees departed with no further involvement. All-Pro's employees did a cursory inspection of the Rieflers' property and attempted to detect the presence of gas by merely sniffing the area with their noses.[3] When All-Pro's employees did not smell the gas, they apparently concluded that the area was safe and left the scene approximately two and a half hours after their arrival. Because the Rieflers still insisted that they smelled gas, one of All-Pro's employees later returned to the scene and again attempted to detect for the presence of gas with his nose. When he again could not smell the gas, he departed the scene without further investigation. None of the other Gas Central members had any involvement with or knowledge of this incident at the time.
Later on July 1, 1989, Googe was severely burned over 90% of his body in a gas explosion that occurred in his bathroom. The explosion occurred when Googe lit a match to smoke a cigarette. The match ignited gas fumes which had apparently permeated into Googe's residence. Although Googe survived the incident, he endured extensive personal injuries.
UNDERLYING MAIN LITIGATION
On September 12, 1989, Googe filed the main personal injury action below solely against All-Pro and Peoples Gas. Googe thereafter entered into a $2 million settlement with All-Pro's insurance carrier. This settlement, however, released only All-Pro's individual qualifiers and its employees who were dispatched to the scene. The settlement did not, however, release All-Pro itself.[4] Thus, at this point, All-Pro remained a defendant in the main action.
Early on in the litigation, Googe successfully moved for partial summary judgment against Peoples Gas on the issue of whether Peoples Gas had vicarious liability for All-Pro's negligence in failing to make the area of the gas leak safe. Peoples Gas' carrier thereafter settled this case with Googe for $3.5 million. In addition to Peoples Gas, the settlement agreement released All-Pro and its employees and individual qualifiers, as well as all other members of Gas Central. There is no record evidence that appellees ever requested or expected Peoples Gas to procure a release on their behalf. Nor is there record evidence that appellees were even invited to participate in the settlement negotiations or were even aware that they were taking place. Upon the execution of the settlement and release agreement, the main action below was brought to a conclusion.
When the other Gas Central members subsequently refused to contribute to the $3.5 million settlement as requested, Peoples Gas filed the instant third-party action for contribution and/or indemnity against all of the members except All-Pro.[5] Peoples Gas sought contribution against appellees based upon its characterization of Gas Central as a general partnership, joint venture or unincorporated association. It further sought indemnity from appellees based upon the hold harmless agreements executed by each in favor of Peoples Gas. The Gas Central members in this third-party action jointly moved for summary judgment on all issues presented based upon their arguments that: (1) the Riefler call was not a Gas Central matter; *298 (2) the nature of Gas Central did not satisfy the legal requirements necessary to establish liability under a partnership, joint venture or unincorporated association theory; and (3) the express language of the hold harmless agreements executed by each Gas Central member calls for indemnity only from the company whose property was involved in the emergency, which in this case was All-Pro. Shortly thereafter, Peoples Gas sought to amend its third-party complaint to plead three counts of equitable contribution based upon its characterization of Gas Central as a partnership, joint venture or unincorporated association against the Gas Central members. Prior to the hearing on these joint motions, appellees Metrogas, Inc. and Siegal Gas Corp. each filed offers of judgment in the amount of $2,500.00. The trial court granted the joint motions for summary judgment and thereafter entered a judgment awarding Metrogas and Siegal Gas attorney's fees and costs each in the amount of $8,797.55. This appeal was taken from these judgments.
II
Peoples Gas asserts that the entry of summary judgment was error where a genuine issue of material fact remained as to the precise nature of the Gas Central entity (i.e. whether it was a partnership, joint venture or unincorporated association) which could only be determined by a jury. See Spencer v. Young, 63 So. 2d 334 (Fla.1953) (stating it is within the province of the factfinder to determine existence of partnership); Knepper v. Genstar Corp., 537 So. 2d 619, 622-23 (Fla. 3d DCA 1988) (stating that whether an entity is a joint venture is a question for the jury), rev. denied, 545 So. 2d 1367 (Fla.1989). We disagree. We find that the question of whether Gas Central may be deemed a partnership,[6] joint venture[7] or an unincorporated association[8] is really irrelevant in this case. That is because unless the Rieflers' telephone call is deemed a Gas Central emergency, appellees would have no liability to Peoples Gas whether Gas Central is characterized as: (1) a partnership, see §§ 620.62, 620.63(1), Fla. Stat. (1989); Lewis v. Horne, 495 So. 2d 780, 781 (Fla. 3d DCA 1986) (where partner not doing partnership business during commission of tort, no liability for remaining partners), rev. denied, 504 So. 2d 767 (Fla.1987); Soden v. Starkman, 218 So. 2d 763, 764-65 (Fla. 3d DCA 1969) (same); (2) a joint venture, see Florida Rock & Sand Co. v. Cox, 344 So. 2d 1296, 1298 (Fla. 3d DCA 1977) (deciding negligence of one joint venturer committed within the scope of the joint venture may be imputed to co-joint adventurers); Florida Tomato Packers, 296 So.2d at 539 (holding that joint adventurers are liable for each other's torts committed within the course and scope of the undertaking); or (3) an unincorporated association, see Guyton v. Howard, 525 So. 2d 948, 956 (Fla. 1st DCA 1988) (drawing a distinction between such associations for business purposes and for fraternal or social purposes and finding in the former, individual liability to be governed by partnership law and in the latter, individual liability to be based upon tortious acts which the member individually commits, participates in, or authorizes, assents to or ratifies).
*299 We think that the appropriate inquiry before us is Peoples Gas' next argumentwhether there is any genuine factual issue in the record as to whether Peoples Gas was acting within the scope of its duties for Gas Central when it responded to the Rieflers' telephone call. We conclude that there is not and that summary judgment was properly entered in favor of the appellees. The bare self-serving assertions made by Peoples Gas that it was acting on Gas Central's behalf in the Riefler incident, without more, are insufficient to defeat a summary judgment. E.g., Landers v. Milton, 370 So. 2d 368, 370 (Fla.1979); Hernando County v. Budget Inns, Inc., 555 So. 2d 1319, 1320 n. 1 (Fla. 5th DCA 1990). Indeed, the record evidence conclusively refutes Peoples Gas' assertions.
First of all, Gas Central was established solely as a centralized emergency response system to calls placed by the police and/or fire departments. It is undisputed that the Riefler call to Peoples Gas was not such a call. The Rieflers' telephone report of the gas leak was made to Peoples Gas' personal telephone number as a result of Peoples Gas' advertisement in the yellow pages. Moreover, there is no record evidence which remotely suggests that appellees ever agreed to treat (or actually treated) consumer reports of gas leaks to Peoples Gas on Peoples Gas' public telephone number as Gas Central emergencies. Hence, there is no record evidence to even create an issue of fact as to Peoples Gas' implicit or apparent authority to so act. See R. 1.510(c), Fla. R. Civ. P.; Landers, 370 So.2d at 370; see also Lewis, 495 So.2d at 781 (approving directed verdict on grounds that tortious activity by partner of defendant was outside scope of partnership business).
The unrefuted evidence also reflects that Peoples Gas' actions at the Rieflers' residence for the most part did not correspond with Gas Central's agreed upon procedures for handling emergency calls. See supra note 2. Although Peoples Gas classified the gas leak as a "Grade 1", it never notified either the fire or police departments of this dangerous condition. Peoples Gas never made the area "safe" as defined in Gas Central's procedures by turning off or disconnecting gas supply. Indeed, contrary to Gas Central's established directive that the designated company make no repairs unless its own lines were involved in the emergency, Peoples Gas attempted to alleviate the gas odor by digging holes in the Riefler's backyard to provide ventilation for the gas fumes. Moreover, and most importantly, none of the appellees had any involvement in this incident. There is thus simply no record evidence to support Peoples Gas' assertion that this was a Gas Central emergency so as to afford it with an opportunity to seek contribution from appellees for discharging a common liability. E.g., Albertson's, Inc. v. Adams, 473 So. 2d 231, 233 (Fla. 2d DCA 1985) (stating action for contribution does not lie in absence of joint and several liability), rev. denied, 482 So. 2d 347 (Fla.1986); Touche Ross & Co. v. Sun Bank, 366 So. 2d 465, 467-68 (Fla. 3d DCA) (denying relief where party seeking contribution was not a joint tortfeasor, nor jointly and severally liable, with the contribution defendant), cert. denied, 378 So. 2d 350 (Fla.1979); see also Restatement of Restitution § 86 at 389-90 (1937) (noting need for common liability to trigger right of contribution); accord § 768.31, Fla. Stat. (1991) (providing for statutory contribution among joint tortfeasors).
Moreover, we find that Peoples Gas' claim for indemnity from appellees to be specifically belied by the unambiguous and express language found in each of the hold harmless agreements drafted by Peoples Gas. Even assuming, arguendo, that the Riefler matter could somehow be deemed a Gas Central call, the hold harmless agreements executed between Peoples Gas and each of the appellees call for indemnity only from the gas company whose property was involved in the emergency. In this case that would be only All-Pro. Thus, none of the appellees would be liable for indemnity to Peoples Gas under their respective executed indemnity agreements in any event.
Finally, based upon the undisputed record before the court, we cannot conclude that the trial court abused its discretion when it denied Peoples Gas' request to amend the third party complaint to plead a count for equitable contribution. Cf. Bondu *300 v. Gurvich, 473 So. 2d 1307, 1310 n. 2 (Fla. 3d DCA 1984) (stating that abuse of discretion occurs where amendment sought would state a viable claim different than one pleaded in the original complaint), rev. denied, 484 So. 2d 7 (Fla.1986).
For these reasons, we affirm the entry of summary judgment.
III
Having concluded that appellees have no liability to Peoples Gas and that summary judgment was appropriately entered, we address Peoples Gas' remaining contention on appeal, that the trial court erred in awarding Metrogas and Siegal Gas attorney's fees and costs. Pursuant to section 768.79(1), Florida Statutes (1991)[9], Metrogas and Siegal Gas each filed offers of judgment for $2,500.00 in this third-party action. Peoples Gas declined to accept either of these offers of judgment. Consequently, when summary judgment was entered in favor of Metrogas and Siegal Gas on the issue of liability, the trial court awarded $8,797.55 as attorney's fees and costs to each of these entities in accordance with that part of section 768.79(1) which states:
[I]f a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by him or on his behalf ... if the judgment is one of no liability....
Peoples Gas nevertheless asserts that this was error pursuant to section 768.79(7)(a)[10] because neither of these offers were made in good faith where both Metrogas and Siegal Gas had reason to know that their meager offers would be rejected by Peoples Gas. Peoples Gas essentially argues that its rejection of both of these offers was reasonable where combined, these offers only totaled approximately ".00142857%" of the $3.5 million settlement amount it sought in its third-party complaint.
Peoples Gas' argument has, however, been specifically rejected by the supreme court's recent decision in Knealing v. Puleo, 675 So. 2d 593 (Fla.1996). In Knealing, the court approved the Fourth District's decisions in Puleo v. Knealing, 654 So. 2d 148 (Fla. 4th DCA 1995) and Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993) which held that "the right to an award [of attorney's fees and costs] depends only on the amount of the rejected offer and the amount of the later judgment." 675 So.2d at 595. "[T]he reasonableness of the plaintiff's rejection is irrelevant to the question of fee entitlement." Id. Here, where neither Metrogas or Siegal Gas was found to have any liability to Peoples Gas, they were clearly entitled to recover an award of reasonable attorney's fees and costs pursuant to section 768.79(1). "The obligation of good faith [found in section 768.79(7)(a)] merely insists that the offeror have some reasonable foundation on which to base an offer." Schmidt, 629 So.2d at 1039. We conclude that where the undisputed record strongly indicated that they had no exposure in this case, Metrogas and Siegal Gas had such a reasonable basis to make nominal offers to Peoples Gas. Moreover, the fact that Metrogas and Siegal Gas may have believed that Peoples Gas would reject their nominal offers is not determinative of the issue of good faith:
A mere belief that the figure offered or demanded will not be accepted, on the other hand, does not necessarily suggest to *301 us either the absence of good faith or the presence of bad faithat least where the offeror fully intends to conclude a settlement if the offer or demand is accepted as made, and the amount of the offer or demand is not so widely inconsistent with the known facts of the case as to suggest on its face the sole purpose of creating a right to fees if it is not accepted.
Schmidt, 629 So.2d at 1040 n. 5.
We, therefore, affirm the order awarding attorney's fees and costs to Metrogas and Siegal Gas.
Affirmed.
NOTES
[1] Each such agreement stated in relevant part that:
* * * * * *
WHEREAS, each of the parties are independent gas companies who are members of Gas Central, an informal association, organized as a cooperative effort of all the gas companies in Broward and Dade Counties, State of Florida, for the sole purpose of providing voluntary emergency assistance in these counties, and
WHEREAS, Gas Central provides assistance to area rescue programs specifically assisting police and fire officers in shutting off gas supplies to buildings or areas endangered by fire or other hazards, and
WHEREAS, the telephone for Gas Central is located on the premises of Indemnitee and is answered by its employees and agents, and
WHEREAS, circumstances may require Indemnitee to dispatch one of its own employees on a call made to Gas Central to assist local authorities in shutting off the gas in Indemnitor's gas lines and necessitate Indemnitee's entry upon and operation of Indemnitor's property.
IT IS HEREBY AGREED, in consideration of One Dollar ($1.00) and other valuable consideration paid to Indemnitor by Indemnitee, receipt of which is hereby acknowledged,
1. Indemnitor hereby indemnifies and holds harmless Indemnitee from any and all liability, loss or damage Indemnitee may suffer as a result of any or all claims, demands, costs or judgments against it arising out of the activities of Indemnitee for Gas Central with respect to property of Indemnitor such as real estate, machinery, gas lines, equipment or otherwise, whether the liability loss or damage is caused by, or arises out of, the negligence of Indemnitee or of its officers, agents, employees or otherwise.
2. Indemnitor agrees to defend against any claims brought or actions filed against Indemnitee with respect to the subject of the indemnity contained herein, whether such claims or actions are rightfully or wrongfully brought or filed. In case a claim should be brought or an action filed with respect to the subject of the indemnity herein, Indemnitor agrees it will employ attorneys to appear or defend the claim or action on behalf of the indemnitee at the expense of Indemnitor.
3. Indemnitor agrees to reimburse Indemnitee for any necessary expenses, attorneys fees or other costs incurred in the enforcement of any part of this indemnity agreement thirty (30) days after receiving written notice that Indemnitee has incurred them.
* * * * * *
[2] The relevant procedures required to be followed in handling a Gas Central emergency matter were as follows:
"When a serviceman responds to a Gas Central call, he will:
1. Report on the scene to the fire officer in charge.
2. Make safe (by turning off or disconnecting gas supply).
3. Evaluate the situation and advise Gas Central if additional help or specialized equipment is required to cope with the situation.
4. Advise the fire officer in charge regarding proper handling or protection of gas equipment, the severity of any gas problem that cannot be made immediately safe and any further steps to protect life and property.
The Serviceman will make no investigation or repairs, other than to make safe unless he is employed by the serving gas company. If he represents the serving gas company he will adhere to their policies concerning investigation or repair. In all cases where it is feasible geographically, Gas Central will attempt to dispatch a serviceman from the serving gas company. The responding serviceman will remain on the scene until released by the fire officer in charge."
[3] All-Pro did not bring a C.G.I. or other equipment to the scene to detect the presence of gas.
[4] Googe refused to release All-Pro because he was concerned that a release of All-Pro would foreclose his claim of vicarious liability against Peoples Gas for All-Pro's negligence.
[5] In a separate action not before this court, Peoples Gas is seeking indemnification against All-Pro pursuant to the hold harmless agreement. See supra note 1.
[6] A "partnership" is defined in Florida's adaptation of the Uniform Partnership Act as "an association of two or more persons to carry on a business for profit as co-owners." Myers v. Brown, 296 So. 2d 121, 123 (Fla. 1st DCA) (citing § 620.585, Fla. Stat.), cert. denied, 305 So. 2d 203 (Fla.1974).
[7] The elements of which have been defined as "(1) a community of interest in the performance of the common purpose, (2) joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a right to share in the profits and (5) a duty to share in any losses which may be sustained." McKissick v. Bilger, 480 So. 2d 211, 212 (Fla. 1st DCA 1985) (quoting Kislak v. Kreedian, 95 So. 2d 510, 515 (Fla.1957)); Campbell v. Jacksonville Kennel Club, Inc., 66 So. 2d 495, 496-97 (Fla.1953); Arango v. Reyka, 507 So. 2d 1211, 1212 (Fla. 4th DCA 1987); Navarro v. Espino, 316 So. 2d 646, 648 (Fla. 3d DCA 1975); Florida Tomato Packers, Inc. v. Wilson, 296 So. 2d 536, 539 (Fla. 3d DCA 1974), cert. denied, 327 So. 2d 32 (Fla.1976); 8 Fla. Jur.2d, Business Relationships § 682 (1978).
[8] Generally "created and formed by the voluntary action of a number of individuals in associating themselves together under a common name for the accomplishment of some lawful purpose." 4 Fla. Jur.2d Associations & Clubs §§ 1, 2 (1994); see also Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1222 (5th Cir.1969), cert. denied, 396 U.S. 1003, 90 S. Ct. 552, 24 L. Ed. 2d 495 (1970).
[9] That section provides:
In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by him or on his behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. Where such costs and attorney's fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff's award.
[10] Section 768.79(7)(a), Florida Statutes (1991) provides that:
If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2122655/ | 137 Cal.App.3d 238 (1982)
186 Cal. Rptr. 876
PIERBURG GmbH & CO. KG, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; DONG KY HUA, a Minor, etc., et al., Real Parties in Interest.
Docket No. 65767.
Court of Appeals of California, Second District, Division Four.
November 5, 1982.
*239 COUNSEL
Kinsella, Boesch, Fujikawa & Towle, Dale F. Kinsella and Karen L. Patterson for Petitioner.
No appearance for Respondent.
Kenneth L. Knapp, Anthony M. Aron, Al Schallau and Jean Corey for Real Parties in Interest.
OPINION
WOODS, P.J.
By petition for mandate a West German national corporation, Pierburg GmbH Co. KG (hereafter Pierburg), which is a defendant in the underlying personal injury products liability action in respondent court, seeks to vacate respondent's order of June 9, 1982, that requires Pierburg to answer written interrogatories served upon it by plaintiffs (real parties in interest) without compliance with the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (23 U.S.T. 2555, T.I.A.S. No. 7444, codified at 28 U.S.C. § 1781) (hereafter the Hague Evidence Convention).
(1) The principal question presented here is whether respondent abused its discretion in ruling that the Hague Evidence Convention need not be complied with by plaintiffs seeking discovery of Pierburg because by answering other *240 written interrogatories propounded by other parties in the same action Pierburg has waived the applicability of that convention.
Review of the Hague Evidence Convention and the California cases addressing its application requires the conclusion that a litigant may not be estopped to assert the requirements of the convention by reason of failure to assert those requirements as to prior discovery in the action. A California court should require litigants seeking such discovery to first attempt to comply with the convention before allowing the litigant to disregard it.
The circumstances leading up to the presently challenged order of June 9, 1982, are not disputed. Plaintiffs were injured when their Audi automobile's engine caught fire. They filed a personal injury action in respondent court and eventually named petitioner Pierburg, a West German corporation, on a products liability theory alleging the carburetor Pierburg manufactured in West Germany was a cause of plaintiffs' injuries.
Pierburg was served pursuant to the Hague Convention on service abroad of judicial and extrajudicial documents in April 1981. On September 24, 1981, plaintiffs propounded a comprehensive first set of written interrogatories upon Pierburg by serving Pierburg's Los Angeles attorneys by mail. The interrogatories, numbering 315 excluding subparts, inquired in great technical detail as to the design, manufacture, components, known defects, testing, and operation of the Pierburg carburetor.
Pierburg sought a protective order, asserting that plaintiffs had not complied with the Hague Evidence Convention in propounding the interrogatories. Plaintiffs filed opposition, asserting that that convention was not applicable. The protective order was granted on March 5, 1982. It required plaintiffs to comply with the convention and also required that "defendant Pierburg must comply with the Hague Evidence Convention when propounding discovery to plaintiffs, if applicable." By order of April 8, 1982, respondent made Pierburg's reciprocal compliance unconditional.
Thereafter Pierburg's attempts to "comply" with the Hague Convention to inspect the subject automobile in plaintiffs' control in California met with a ruling by a federal district court and a letter from the Department of Justice stating that the convention did not apply to physical inspections to be conducted within the territorial jurisdiction of the state court compelling the discovery. Pierburg moved for an order compelling inspection without compliance with the convention. Plaintiffs filed opposition to that motion and also sought vacation of the March 5th order on the basis that Pierburg had voluntarily answered written interrogatories propounded by a codefendant without asserting noncompliance *241 with the Hague Evidence Convention. The singular subject of those interrogatories was the location of certain photographs of the automobile.
After hearing, which focused upon Pierburg's alleged waiver of Hague Evidence Convention requirements, respondent issued its order of June 9, 1982, which vacated the reciprocal protective order of March 5th and directed Pierburg to respond to plaintiffs' written interrogatories. Plaintiffs claim that they cannot afford to translate their interrogatories into German as required by the convention. Plaintiffs never made any effort to serve their interrogatories on Pierburg in conformity with the Hague Evidence Convention. Pierburg filed its petition with this court June 30, 1982. We stayed the June 9th order and issued the alternative writ.
The two reported California cases that have addressed the applicability of the Hague Evidence Convention where California civil litigants sought discovery of West German national defendants within West Germany have established that California courts must compel the litigants to first attempt such discovery in conformity with that convention. This rule applies even though the courts have jurisdictional power to compel the party to comply with discovery outside the convention.
The discussions in these cases as to the purpose of the convention, which is an international treaty ratified by both West Germany and the United States, also compel the conclusion that a civil litigant may not waive the applicability of the convention by failing to invoke it as to prior discovery in the action.
In the first of the two cases, Volkswagenwerk Aktiengesellschaft v. Superior Court (1973) 33 Cal. App.3d 503 [109 Cal. Rptr. 219], California residents sued a West German corporation for personal injuries allegedly resulting from the defective design and manufacture of an automobile manufactured by the defendant in West Germany. Plaintiffs sought discovery in the form of appointment of a commissioner to take oral depositions of defendant's officials and employees in West Germany, and in the form of permitting plaintiffs to physically inspect and photograph defendant's plant in West Germany.
Defendant opposed such discovery contending that it violated the Hague Evidence Convention for failure to first seek the consent and cooperation of the West German judiciary by submitting "Letters of Request" in conformity with the convention. Defendant submitted official documentation from the West German Embassy stating the discovery sought would constitute an encroachment upon its government's sovereign rights. The trial court nevertheless issued the requested discovery orders.
*242 The Court of Appeal in mandate proceedings held this was an abuse of discretion. That court pointed out critical considerations, derived from the 1968 Hague Conference on Private International Law and other authorities, which is applicable to our present question of whether a litigant has any power to waive the applicability of the convention: "According to the authorities, common law nations regard the deposition of a willing witness as a private, relatively informal matter in which their courts have no interest. A different view is taken by civil law nations such as Germany. There, a deposition in aid of a foreign proceeding is a public matter, requiring the participation and consent of their own courts; the activity of a commissioner appointed abroad [pursuant to section 2018, subdivision (b) of the Code of Civil Procedure] represents an intrusion upon the `judicial sovereignty' of such a nation; thus a letter rogatory is the usual and accepted method of taking depositions in a civil law nation. [Citations.]" (Volkswagenwerk Aktiengesellschaft v. Superior Court, supra 33 Cal. App.3d at p. 507.) The court continued: "Whatever the generous provisions of the California discovery statutes, courts ordering discovery abroad must conform to the channels and procedures established by the host nation. The limitation may rest on any one of several theories comity, curtailed discretion or implied statutory qualification. In this case the California discovery orders would impair the powers of the Federal Republic of Germany to control the property and personnel of an entity which it has created and which has never left its protection." (Volkswagenwerk, supra, 33 Cal. App.3d at p. 508.) The Volkswagenwerk court concluded with the comment that if it develops that the West German defendant is attempting to evade legitimate discovery after plaintiff has attempted discovery by letters of request under the convention, then the California court may compel discovery.
The second case dealing with the application of the Hague Evidence Convention (which by coincidence involves the same German corporation) is Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 123 Cal. App.3d 840 [176 Cal. Rptr. 874] (hereafter Volkswagenwerk (1981)). There California plaintiffs sued Volkswagenwerk for personal injuries allegedly resulting from a defective automobile manufactured by defendant in West Germany.
Plaintiffs obtained discovery orders compelling defendant to permit physical inspection of its plant and interviews of its employees in West Germany; to permit inspection and photographing of the plant's technical library and design and testing records concerning the type of vehicle involved and predecessor types; to allow informal interviews of defendant's employees at its plant; and to allow depositions of defendant's officers and employees. All such discovery was to be conducted in West Germany without compliance with the Hague Evidence Convention.
*243 After determining that the informal interviews were not a permissible method of discovery under California law and that the scope of document examination had to be narrowed, the court reached the critical question of the applicability of the Hague Evidence Convention.[1] Differing with a preliminary conclusion reached in Volkswagenwerk (1973), the Volkswagenwerk (1981) court determined that a foreign national is clearly subject to a California court's jurisdictional power to compel discovery in that party's home nation incidental to the court's personal jurisdiction over the party.[2] However, the Volkswagenwerk (1981) court concluded:
"On the other hand, in cases such as this American courts traditionally and properly recognize the countervailing force of international comity: The concept that the courts of one sovereign state should not, as a matter of sound international *244 relations, require acts or forebearances within the territory, and inconsistent with the internal laws, of another sovereign state unless a careful weighing of competing interests and alternative means makes clear that the order is justified. Rulings based in this concept of international comity are dictated not by technical principles of jurisdiction of the parties to or subject-matter of particular lawsuits, but rather by exercise of judicial self-restraint in furtherance of policy considerations which transcend individual lawsuits. [Citation.] Particularized to discovery matters it is (as VWAG 1973 recognized) `a policy of avoiding international discovery methods productive of friction with the procedures of host nations.' (VWAG 1973, supra, 33 Cal. App.3d at p. 508.)" (Italics added.) (Volkswagenwerk (1981) supra, 123 Cal. App.3d at p. 857.)
Drawing from what it perceived to be the consistent approach of federal courts to view the Hague Evidence Convention as compelled by comity and requiring a balancing of considerations when discovery in conformity with the convention places the foreign national in a dilemma between giving discovery and offending the sovereignty or violating the laws of the foreign nation, Volkswagenwerk (1981), supra, 123 Cal. App.3d at page 859, concluded that "... the trial court, in the exercise of judicial restraint based on international comity, should have declined to proceed other than under the Hague Convention" until such procedure resulted in an impasse. It noted that under the supremacy clause of the United States Constitution (§ 2 of art. VI) the Hague Evidence Convention, as an international treaty ratified by the United States, may be read as a preemptive rule of international discovery and binding upon state courts. But that court interpreted article 27 of the convention, which provides that means of discovery less formal than or means not provided for by the law of the host nation may be adopted to expedite discovery, as reflecting the intention that "the Hague Convention establishes not a fixed rule but rather a minimum measure of international cooperation." (Volkswagenwerk (1981), supra, at p. 859.)
In view of the cases discussed above no elaborate analysis is needed to conclude that a civil litigant such as Pierburg cannot "waive" the applicability of the Hague Evidence Convention by failing to assert noncompliance with that convention as to prior discovery by other parties to the action.
The foundation of the convention is to avoid international friction where a domestic state court orders civil discovery to be conducted within the territory of a civil law nation that views such unilateral conduct as an intrusion upon its judicial sovereignty. The failure of one litigant in the domestic action to demand compliance with the convention cannot divest the foreign nation of its *245 sovereign judicial rights under the convention. The convention may be waived only by the nation whose judicial sovereignty would thereby be infringed upon.
Plaintiffs have advanced several arguments against the initial applicability of the Hague Evidence Convention. The first is presented in two variations: that because defendant Pierburg has conducted substantial business in California to its substantial profit and has purposefully availed itself of the benefits of California laws, Pierburg must be deemed to be a California resident and to have subjected itself to the jurisdiction and laws of procedure applicable to California residents. These arguments are fully answered by the holdings and discussions of Volkswagenwerk (1973) supra, and Volkswagenwerk (1981), supra.
Plaintiffs next contend that the discovery sought of defendant Pierburg is of evidence located in the United States and can be answered here, so the Hague Convention does not apply. This contention is answered by noting that Pierburg is a West German corporation with its principal offices there. The foundation of the Hague Convention is to honor West Germany's civil law jurisdiction over civil discovery concerning its nationals conducted within the territory of West Germany. Accordingly, plaintiffs cannot avoid the clear applicability of the convention by arguing that the Pierburg officers responsible for providing answers to the discovery could leave West Germany to perform the physical act of giving answers.
Neither is there persuasiveness in plaintiffs' assertion that Pierburg's local Los Angeles counsel and expert witnesses could answer the interrogatories here. This, of course, would automatically destroy the convention in all discovery matters other than those involving physical inspection of the foreign national's property in its state of citizenship. This is not the intendment of the convention. The subject written interrogatories indisputably seek information that could only be known by Pierburg employees or contained in Pierburg records and documents in West Germany. Plaintiffs' argument also overlooks the possibility that discovery in West Germany might have to be conducted in the form of oral depositions by West German judicial officers. In such a case, written interrogatories could not be answered in California.
Plaintiffs also assert that West Germany has expressed no objection to Pierburg answering interrogatories outside the Hague Convention. But plaintiffs ignore the fact that this silence exists because plaintiffs have failed to make any attempt to comply with the convention by submitting letters of request to the West German judiciary asking for execution of their discovery. Defendant is under no obligation to make such a request. Plaintiffs' obligation is to first seek the cooperation and advice of West Germany as to the appropriate procedure. *246 They have not done this. Until they do, it cannot be assumed that West Germany will object to plaintiffs' desired discovery.
Plaintiffs contend that requiring them to propound interrogatories in accordance with the Hague Evidence Convention denies them equal protection of California discovery law, as guaranteed under the Fourteenth Amendment, because defendant Pierburg need not observe that same convention to obtain discovery of plaintiffs.
This contention must be rejected for two reasons. First, as was held in Dr. Ing. H.C.F. Porsche A.G. v. Superior Court (1981) 123 Cal. App.3d 755, 760 [177 Cal. Rptr. 155], in an analogous context: "The United States became bound by the provisions of the multilateral international convention governing `Service Abroad of Judicial and Extrajudicial Documents' (the Hague Convention) .... Germany ratified the treaty on June 21, 1979. [¶] The second clause of article VI of the United States Constitution provides: `This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' Accordingly, a California court may not exercise jurisdiction in violation of an international treaty. [Citations.]" California's interest in avoiding violations of international treaties is clearly a rational basis for requiring California litigants to comply with the Hague Evidence Convention.
Second, equal protection arguments apply only where persons who are similarly situated receive disparate treatment. Here, plaintiffs and defendant are not so situated. Although both are litigants in the same action, plaintiffs seek discovery different than that sought herein by defendant. Should defendant seek answers to written interrogatories from its codefendants, who are also West German nationals, and those codefendants assert the applicability of the Hague Evidence Convention, then Pierburg would be treated in the identical manner as plaintiffs must now be treated. This state may not, and does not, treat two parties seeking the same discovery differently.
The consequence that compliance with the Hague Evidence Convention might entail additional cost to plaintiffs is not disparate treatment. California law imposes different obligations upon proponents of discovery depending upon the status and location of the deponent.[3]
*247 Neither of the parties have submitted real authority indicating whether written interrogatories are a form of evidence-taking recognized under West German law. Neither do the provisions of the convention so indicate.
While the respondent and this court may take judicial notice of the laws of West Germany and its existing agreements with this country (Evid. Code, §§ 452, 454, 459), presently available sources do not reveal how West Germany would treat a letter of request by plaintiffs to allow defendant Pierburg to answer written interrogatories in that nation. The answer, as concluded in Volkswagenwerk (1981), is to require plaintiffs to attempt to obtain defendant's answers to the written interrogatories under the convention. This will reveal whether simple service of the interrogatories and answers in English are permissible or what alternative mode is available.
Article 27 of the convention provides that its provisions shall not prevent participating nations from "(b) permitting, by internal law or practice, any act provided for in this Convention to be performed upon less restrictive conditions;" and "(c) permitting, by internal law or practice, methods of taking evidence other than those provided for in this Convention."
Article 1 of the convention provides that one contracting state may, "by means of a Letter of Request," request another contracting state "to obtain evidence, or to perform some other judicial act." Such "Letters of Request" are transmitted from the "Central Authority" of one state to that of the other. (Art. 2.) The request shall specify, inter alia, "the questions to be put to the persons to be examined...." (Art. 3(f).) Article 9 provides: "The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. [¶] However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties."
In sum, respondent must direct plaintiffs to attempt to comply with the Hague Evidence Convention in taking discovery of defendant Pierburg in West Germany.
Let a peremptory writ of mandate issue directing respondent to vacate its order of June 9, 1982, in Los Angeles Superior Court case No. C 231327, entitled Dong Ky Hua, a Minor et al. v. Porsche Audi, etc., et al., and to make a new and different order requiring plaintiffs to seek their discovery in compliance *248 with the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, and to thereafter proceed in accordance with law.
Kingsley, J., and McClosky, J., concurred.
The petition of real parties in interest for a hearing by the Supreme Court was denied December 30, 1982. Bird, C.J., was of the opinion that the petition should be granted.
NOTES
[1] The court began with an overview of the purposes and functions of the convention:
"In 1979 West Germany ratified the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (23 U.S.T. 2555, T.I.A.S. 7444) which had been adopted by an international conference at The Hague in 1970 and thereafter had been ratified by several countries including the United States. This Hague Convention provides international access, by means consistent with local sovereignty, to evidence within West Germany. `One of the principal objects of a Convention on this subject is to bridge differences between common law and civil law systems.' [Citation.] To this end the conferees sought among other things to simplify and expedite use of `letters of request' which under the Hague Convention are considerably broader in function than letters rogatory. [Citation.] By letter of request a `requesting authority' (here, for example, the California superior court) may transmit to a `Central Authority' in the country in which the evidence is to be taken a request for judicial assistance to be forwarded to and executed by a local `executing authority' (in West Germany, for example, the local court). Under the Hague Convention as adopted, the request can extend to testimony and to inspection of documents and property; procedures specified by the requesting authority will be applied to the extent feasible and consistent with local law; the executing authority shall apply those `measures of compulsion' which would be available in local actions; and the letter of request `shall be executed expeditiously.'" (Volkswagenwerk (1981) supra, 123 Cal. App.3d at p. 853.)
[2] "Once a foreign corporation is properly subject to a court's jurisdiction, it (like any other party validly joined in a local lawsuit) may with technical propriety be ordered to act or to refrain from acting, in matters relevant to the lawsuit, at places outside the state. [Citations.] In this sense, and to this extent, at least, VWAG's internal affairs are subject to the orders of a California court in an action to which it has been made a party. In Coopman v. Superior Court (1965) 237 Cal. App.2d 656 ..., on which VWAG 1973 relies, a party sought indirectly to search the records of a Nevada corporation which was not a party to the action; the Coopman generalizations do not apply to a corporation which is properly a party to the action in which the orders issue.
"It is also the general rule that the law of the forum (again, in this case, California) will govern procedural matters, including such matters of pretrial practice as `the taking and use of depositions, discovery and penalties for refusal to comply with proper request for information.' [Citation.] Further, `[i]t... seems that a defendant who has had sufficient contacts with the forum state to give it personal jurisdiction can consistently with due process be required, on pain of default, to conform to that state's discovery procedures as essential incidents of the exercise of jurisdiction.' [Citation.] That VWAG should have been chartered by, and should maintain its manufacturing facility in, a jurisdiction which would regard these California discovery orders as violations of its sovereignty seems happenstance so far as the California action is concerned: A strong argument can be made that as a legitimate party to a California action VWAG may be required to elect between the demands of the California court and the sensitivities of the West German government, and to risk the sanctions authorized by California law should it elect not to give the required discovery." (Volkswagenwerk (1981) supra, 123 Cal. App.3d at pp. 856-857.)
[3] Code of Civil Procedure section 2019, subdivisions (a)(4) and (b)(2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2149438/ | 98 Cal.App.3d 880 (1979)
160 Cal. Rptr. 10
ERNEST GRAHAM et al., Petitioners,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent, THE PEOPLE, Real Party in Interest. ERNEST GRAHAM, Petitioner,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest.
Docket Nos. 47698, 47723.
Court of Appeals of California, First District, Division Four.
November 20, 1979.
*883 COUNSEL
Larson, Weinberg & Harris, James Larson, Doron Weinberg, Carrow, Forest & Jordan, Robert D. Carrow and Phillip J. Abrams for Petitioners.
No appearance for Respondent.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, and William D. Stein, Deputy Attorney General, for Real Party in Interest.
OPINION
CHRISTIAN, J.
Ernest Graham and Eugene Allen seek a writ of mandate in 1/Civil 47698 to determine that the mandatory death penalty provision of Penal Code section 4500, effective at the time of the offense with which they are charged, is unconstitutional.
The Supreme Court has recited the facts in an earlier appeal involving these petitioners as follows:
"On November 27, 1973, a state correctional officer was assaulted and stabbed numerous times while on duty in Deuel Vocational Institute, a state prison facility; the officer died the same day as a result of the injuries sustained in the attack. On December 5, 1973, the San Joaquin County Grand Jury returned a two-count indictment against *884 defendants as a result of the incident; the indictment charged both with violation of Penal Code section 187 (murder) and section 4500 (aggravated assault by a life prisoner).
"On October 7, 1974, just prior to the first trial in this matter, the superior court dismissed the murder charge against each defendant upon motion of the district attorney; as a consequence, the two defendants went to trial solely on the section 4500 charges. The jury in the initial trial could not agree on a verdict and a mistrial was declared. Thereafter, defendants' motion for change of venue was granted and the case was transferred to the San Francisco Superior Court." (People v. Allen (1979) 23 Cal.3d 286, 290 [152 Cal. Rptr. 454, 590 P.2d 30].)
"On March 31, 1976, the jury returned a verdict finding both defendants guilty of violating Penal Code section 4500. On April 2, 1976, pursuant to the mandatory provisions of section 4500, the trial court sentenced each of the defendants to death. On appeal, defendants challenge both their convictions and their death sentences." (Id., at p. 292.)
On automatic appeal, the Supreme Court reversed the judgment, holding that petitioners had established a prima facie case of unconstitutional use of peremptory challenges. The case was remanded for a new trial. (Id., p. 295.)
Counsel for petitioners moved in the trial court for an order determining that the mandatory death penalty provisions of Penal Code section 4500 are unconstitutional. The motion was denied, and the present writ proceeding ensued.
(1a) In 1973, at the time of the attack which gave rise to the charges against petitioners, section 4500[1] provided a mandatory death penalty for malicious assault upon a noninmate by a person undergoing a life sentence if the victim dies.[2] Petitioners contend the provision is unconstitutional because it does not allow mitigating factors to be taken into account in the sentencing of the prisoner convicted of the assault.
*885 In 1976, the United States Supreme Court evaluated the capital punishment systems of several states to determine whether they met constitutional requirements for imposition of the death penalty. (Roberts v. Louisiana (1976) 428 U.S. 325 [49 L.Ed.2d 974, 96 S.Ct. 3001]; Woodson v. North Carolina (1976) 428 U.S. 280 [49 L.Ed.2d 944, 96 S.Ct. 2978]; Jurek v. Texas (1976) 428 U.S. 262 [49 L.Ed.2d 929, 96 S.Ct. 2950]; Proffitt v. Florida (1976) 428 U.S. 242 [49 L.Ed.2d 913, 96 S.Ct. 2960]; Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909].) In these cases the court declared that the death penalty statutes reviewed in the earlier case of Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726], "were unconstitutional, not because they conferred discretion upon the sentencing authority, but because the discretion conferred was `standardless.'" (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 446 [134 Cal. Rptr. 650, 556 P.2d 1101].) Mandatory standardless statutes were held to be unsatisfactory responses to the Furman decision, and the United States Supreme Court struck down the North Carolina and Louisiana statutes as constitutionally unacceptable. In these cases, and in the death penalty cases which followed, however, the Supreme Court has specifically not held that all mandatory death penalty statutes would be constitutionally defective. For instance, in Gregg v. Georgia, supra, 428 U.S. at page 186 [49 L.Ed.2d at page 882], the court remarked that "there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate." In Woodson v. North Carolina, supra, 428 U.S. at page 287, footnote 7 [49 L.Ed.2d at p. 951], the same justices noted: "This case does not involve a mandatory death penalty statute limited to an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence, defined in large part in terms of the character or record of the offender. We thus express no opinion regarding the constitutionality of such a statute. See n. 25, infra." (See also Lockett v. Ohio (1978) 438 U.S. 586, 604, fn. 11 [57 L.Ed.2d 973, 990, 98 S.Ct. 2954]; Roberts v. Louisiana (1977) 431 U.S. 633, 637, fn. 5 [52 L.Ed.2d 637, 642, 97 S.Ct. 1993]; Roberts v. Louisiana, supra, 428 U.S. 325, 334, fn. 9 [49 L.Ed.2d 974, 982].)
*886 The California Supreme Court has held unconstitutional the California statutory scheme which permitted the imposition of the death penalty as punishment for first degree murder when any of the special circumstances charged in an accusatory pleading was found by the trier of fact. The majority opinion did not mention the mandatory death penalty of section 4500 but concluded in its discussion of Gregg v. Georgia: "The aspects of the Georgia scheme which a majority of the court considered essential to its constitutionality therefore appear to be the narrowly defined aggravating factors or categories of murder for which capital punishment is authorized and the opportunity for the defendant to present evidence and argument on and to have the jury consider mitigating circumstances with respect to both the commission of the offense and his personal characteristics which militate against imposition of the extreme penalty." (Rockwell v. Superior Court, supra, 18 Cal.3d 420, 432; see also People v. Frierson (1979) 25 Cal.3d 142, 176 [158 Cal. Rptr. 281, 599 P.2d 587].)
The People contend that former section 4500 is so narrowly drawn that its definition manifests an adequate consideration of aggravating and mitigating factors: it applies the mandatory death penalty only to a malicious killing and only to a life prisoner. These qualifications, however, encompass a wide range of personal culpability. A malicious killing not covered by section 4500 may be either first or second degree murder, a division made in recognition of the "difference in the quantum of personal turpitude of the offenders." (People v. Holt (1944) 25 Cal.2d 59, 89 [153 P.2d 21].) The classification of life prisoner covers an even broader range of culpability as well as 57 percent of the 1973 prison population. Under the indeterminate sentencing law in effect at the time of the offense, a life prisoner could be serving a sentence for first degree murder or a sentence for robbery of the second degree. Section 4500, therefore, could apply to a person who might hope to be released from prison in months as well as to one who might expect to remain there for many years.
The Supreme Court of Rhode Island recently considered the constitutionality of a death penalty statute enacted in response to a series of disturbances at Rhode Island prisons which culminated in the killing of a prison guard. The statute provided a mandatory death penalty for any person who committed murder while confined in prison. Although this statute applies to all prisoners, not just to all prisoners serving a life term, it was not an analysis of the classification that prompted the court to hold the statute unconstitutional. The statute was held to be defective *887 because it contained "no provision for the trial justice, in imposing sentence, to consider any mitigating factors whatsoever." (State v. Cline (1979) ___ R.I. ___ [397 A.2d 1309, 1311].)
(2) The mitigating and aggravating factors which a trial judge must consider before deciding upon the death penalty are factors personal to the defendant and the crime. They include such things as the age of the defendant, his degree of direct involvement in the assault, the extent of premeditation or deliberation in the commission of the crime, the influence of drugs, alcohol or mental illness, whether any form of duress existed, whether the defendant reasonably believed his act was morally justified, whether there was some provocation not amounting to a defense. (See § 190.4.) (1b) These are factors which should be considered even when the victim is a police officer, who, like a prison guard, holds a dangerous position and one the state has a special interest in protecting. (Roberts v. Louisiana, supra, 431 U.S. at pp. 636-637 [52 L.Ed.2d at pp. 641-642].)
The People's second major argument is that hinted at in Gregg v. Georgia, i.e., that only a mandatory death penalty is adequate to protect the prison guard from assault by a life prisoner. The theory is that the life prisoner with nothing more to lose will not be deterred by the threat of a lesser punishment. The life prisoner under the indeterminate sentencing law, however, was not as a practical matter in prison for life. Virtually all felons life termers and nonlife termers alike were returnable to society by virtue of discharge on parole. The People do not contend otherwise. They do point to authorities which suggest that the indeterminate sentence enhances a sense of helpless rage and frustration which may be taken out on the correctional officers. But it does not follow that life prisoners would be more likely than other prisoners to risk their chance of parole or that the certainty of death was in reality any more of a deterrent because the prisoner was frustrated and enraged. As the United States Supreme Court observed, the death penalty is most apt to deter the "carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act." (Gregg v. Georgia, supra, 428 U.S. at p. 186 [49 L.Ed.2d at pp. 881-882].) What the Supreme Court was concerned with was the possibility that no penalty other than death might be available for the life prisoner. Where there is a possibility of parole, the state has available the postponement of the parole date as well as harsher terms of confinement.
*888 In 1978, section 4500 was amended to provide for an alternative punishment of life without possibility of parole if the victim of the assault dies.[3] This revision was made in response to the 1976 court decisions[4] and was made in spite of the specific reservation by the United States Supreme Court of any expression concerning the constitutionality of a mandatory death penalty for life prisoners who commit murder. It must be inferred that the Legislature considered the alternative punishment adequate.
It is concluded that the classification of persons subject to a mandatory death penalty in former section 4500 is not sufficiently narrow to encompass a consideration of mitigating factors required for a finding of constitutionality and that the People have not established that only death is an adequate penalty for malicious assault on a noninmate by a life prisoner. It follows, therefore, that section 4500 as it existed in 1973 was unconstitutional.
(3) Petitioners not only argue that the 1973 version of section 4500 is unconstitutional; they also contend, citing People v. Teron (1979) 23 Cal.3d 103 [151 Cal. Rptr. 633, 588 P.2d 773], that the punishment provisions of the current version of section 4500 may not be applied retroactively. The defendant in Teron had been convicted of first degree *889 murder and sentenced to die. The crime occurred in 1975 when the mandatory death penalty for first degree murder was in effect. By the time of his indictment, however, the 1977 legislation was in effect with its alternatives of death or life without possibility of parole. The Supreme Court held that the new death penalty statutes could not be applied to the defendant. The court pointed out that section 3 of the Penal Code has specifically provided that no provision of the code "is retroactive, unless expressly so declared." This provision does not bar the retroactive application of amendatory legislation which mitigates or reduces the punishment for a crime where it can be inferred that the court intended a retroactive application. Ordinarily, such an intention can be inferred from the fact of enactment. "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply...." (In re Estrada (1965) 63 Cal.2d 740, 745 [48 Cal. Rptr. 172, 408 P.2d 948].) This inference cannot be drawn in the case of death penalty legislation, because the Legislature has declared its belief "that the increased sanctions permitted by the new law were necessary for the immediate protection of the public. Consequently, the principle that statutes which increase the punishment for crime will be construed to apply only to crimes committed after their enactment governs the interpretation of the 1977 legislation, and precludes its retroactive application." (People v. Teron, supra, 23 Cal.3d at p. 117.) The court in Teron modified the judgment to provide for a sentence of life imprisonment. (Id., at p. 119.)
It is concluded that the penalties presently provided by section 4500 may not be applied if petitioners are found guilty of a violation of that section.
Petitioner Graham alone seeks a writ in 1/Civil 47723, arguing that he should not be prosecuted for violation of Penal Code section 4500 on the ground that the section is not applicable to him in that he is not a life prisoner.
(4) Graham contends that the enactment of the determinate sentence law (§ 1170 et seq.) in 1976 requires that the life sentence he was admittedly serving on November 27, 1973, now be considered as a term of years. From this premise he concludes the indictment against him *890 must be set aside because there is no evidence that he was a "person undergoing a life sentence" when the crime was committed. This contention cannot be sustained.
Every inmate sentenced to prison for an offense carrying a maximum term of life is "a life prisoner" within the meaning of section 4500 even though the Adult Authority may subsequently fix his term at less than life or grant parole. (People v. Harmon (1960) 54 Cal.2d 9, 16-17 [4 Cal. Rptr. 161, 351 P.2d 329], disapproved on another point in In re Estrada, supra, 63 Cal.2d 740; People v. Jefferson (1956) 47 Cal.2d 438, 442-443 [303 P.2d 1024]; People v. Wells (1949) 33 Cal.2d 330, 334-337 [202 P.2d 53], cert. den. 338 U.S. 836 [94 L.Ed. 510, 70 S.Ct. 43].) (5) A life prisoner may be convicted of violating section 4500 even if the conviction under which he was a life prisoner is invalid. "`If the purpose of the statute is to be achieved, and obviously the purpose is a sound one, it makes no difference why the prisoner has been confined, or that he may be legally entitled to release.'" (Wells v. People of State of California (9th Cir.1965) 352 F.2d 439, 442, cert. den., 384 U.S. 1009 [16 L.Ed.2d 1021, 86 S.Ct. 1968]; see People v. Superior Court (Gaulden) (1977) 66 Cal. App.3d 773 [136 Cal. Rptr. 229].)
The legislative purpose in enacting section 4500 was to deter those who were serving life sentences who might otherwise believe they had nothing to lose. (See People v. Wells, supra, 33 Cal.2d 330, 335.) It is the prisoner's status on the day of the offense which brings him within this classification.
People v. Rossi (1976) 18 Cal.3d 295 [134 Cal. Rptr. 64, 555 P.2d 1313], illustrates the flaw in petitioner's reasoning. There, the defendant had been found guilty of acts of oral copulation under Penal Code section 288a, which was amended subsequent to her conviction but before judgment was final. The acts performed by defendant were not included within the amended statute and, applying In re Estrada, supra, 63 Cal.2d 740, the court held that the defendant, Mrs. Rossi, could not be punished. However, had Mrs. Rossi been imprisoned upon her conviction and absented herself from the prison the day after section 288a was amended, she could still be prosecuted for escape. (People v. Ganger (1950) 97 Cal. App.2d 11, 13 [217 P.2d 41].) Similarly, had Mrs. Rossi been sentenced to a life term, she would have been subject to prosecution under section 4500 had she killed a prison guard.
*891 The effect of In re Estrada has been considered in the context of the determinate sentencing law. It has been pointed out that cases such as In re Estrada involve ameliorative enactments in which the Legislature made no express statement as to its intent regarding prospectivity or retroactivity. The determinate sentencing law, however, sets forth a complete scheme as to its application to past offenses and sentences. (See In re Brown (1978) 78 Cal. App.3d 647, 651 [143 Cal. Rptr. 549]; People v. Alcala (1977) 74 Cal. App.3d 425, 427 [141 Cal. Rptr. 442].) Petitioner received the ameliorative effects intended to be applied to a person in his position when his term was computed in accordance with the act. These ameliorative effects did not include a change of designation retroactive to the time of the acts for which he is now to stand trial.
A writ will issue commanding respondent court to proceed on the basis that no death penalty can be imposed for the offenses petitioners are charged with. The alternative writ in 1/Civil 47723 is discharged and the petition is denied.
Rattigan, Acting P.J., and Poche, J., concurred.
Petitions for a rehearing were denied December 19, 1979, and the application of petitioner Graham and the petition of real party in interest in No. 47698 for a hearing by the Supreme Court were denied January 17, 1980.
NOTES
[1] All statutory references herein are to the Penal Code.
[2] At the time of the offense, section 4500 read as follows: "Every person undergoing a life sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another, other than another inmate, with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death; however, in cases in which the person subjected to such assault does not die within a year and a day after such assault as a proximate result thereof, or the person so assaulted is another inmate, the punishment shall be death or imprisonment in the state prison for life without possibility of parole for nine years, at the discretion of the court or jury trying the same, and the matter of punishment shall be determined as provided in Section 190.1 of this code. For the purpose of computing the days elapsed between the commission of the assault and the death of the person assaulted, the whole of the day on which the assault was committed shall be counted as the first day.
"Any person who, under this section, is punished by imprisonment rather than death, shall be required to serve his sentence consecutively to any sentence he is presently serving."
[3] Section 4500 presently reads: "Every person undergoing a life sentence in a state prison of this state who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment in the state prison without possibility of parole. The penalty shall be determined pursuant to the provisions of Sections 190.3 and 190.4; however, in cases in which the person subjected to such assault does not die within a year and a day after such assault as a proximate result thereof, the punishment shall be imprisonment in the state prison for life without the possibility of parole for nine years. [¶] For the purpose of computing the days elapsed between the commission of the assault and the death of the person assaulted, the whole of the day on which the assault was committed shall be counted as the first day. [¶] Nothing in this section shall be construed to prohibit the application of this section when the assault was committed outside the walls of any prison if the person committing the assault was undergoing a life sentence in a state prison at the time of the commission of the assault and was not on parole."
[4] In revising the mandatory capital punishment system, including section 4500, in 1977, the Legislature declared its intent as follows: "This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting such necessity are: [¶] The California Supreme Court has declared the existing death penalty law unconstitutional. This act remedies the constitutional infirmities found to be in existing law, and must take effect immediately in order to guarantee the public the protection inherent in an operative death penalty law." (Stats. 1977, ch. 316, § 26, p. 1266.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2209266/ | 211 Cal.App.2d 698 (1963)
LLOYD C. STEELE et al., Plaintiffs and Respondents,
v.
J. D. SHULER et al., Defendants and Appellants.
Civ. No. 10477.
California Court of Appeals. Third Dist.
Jan. 10, 1963.
Robert E. Laughlin for Defendants and Appellants.
Darrell Glahn for Plaintiffs and Respondents.
PIERCE, P. J.
This is a boundary dispute involving a line which is the north line of plaintiffs' property, the south line of defendants' property, which adjoins the Steeles' on the north. The area involved in the dispute constitutes a frontage along a county road of approximately 58 feet, with a depth of 440 feet more or less. The trial court quieted the title of plaintiffs Steele, denying the claims of the Shulers expressed in a cross-complaint. The Shulers appeal and urge an insufficiency of evidence to support the court's finding. Appellants' contention centers upon a blazed tree which, it is asserted, was a "witness" tree marking a boundary line, agreed upon or acquiesced in, although concededly not the true boundary if the calls in the description of the Shulers' original deed are followed.
Effectually both parties claim under a common grantor, *701 Leigh. [fn. 1] (As regards Steele's deed, Leigh conveyed to one Germany who conveyed over to Steele on the same day using the same description.)
[1a] Steele bought and obtained title in 1951. The circumstances: He wanted a homesite on which to retire and was shown property in section 24 along and to the west of a county road running (slightly) diagonally northwesterly and southeasterly through the section. The country was mountainous, with a stand of timber, and the land was unsurveyed. Steele's requirements were: A parcel with a frontage along the road of 547 feet with a depth running to the west section line and a south line parallel to and 500 feet north of the south section line.
The description in the deed was by metes and bounds. Its point of beginning was a point on the west section line of section 24,500 feet north of the southwest corner of the section. The first call was a line running east, parallel to the south section line, a distance of "720.00 feet more or less, to the center of the Magalia-Stirling City Highway." The second call was northerly along said center line of said road a distance of 547 feet. The third call was a line running west and parallel with the south section line a distance of 466 feet, more or less, to the west line of said section. The fourth call ran south along said west line to the point of beginning.
When a survey was run two years later it was found that the distances between the west line of section 24 and the center line of the road were substantially less than had been estimated. The south boundary instead of being a line "720.00 feet more or less" was 595 feet (or 125 feet short). The north boundary was 440 feet instead of "466.00 feet, more or less" (a shortage of 26 feet).
These shortages are unimportant to this controversy since the east-west boundaries are not involved. [2] The rule to determine intent where such inconsistencies are involved is: "When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement ... of lines ... the boundaries or monuments are paramount." (Code Civ. Proc., 2077, subd. 2; Shelton v. Malette, 144 Cal. *702 App.2d 370, 374 [301 P.2d 18].) [1b] Here there is no question that the parties intended the south and north lines of Steele's property to run from the section line on the west to the center line of the road; also it is clear that the south line was intended to be parallel to and 500 feet north of the south section line. The record shows that said south section line had been surveyed. And the description, with the aid of the rule of interpretation quoted above, could be located on the ground with certainty. As one of the witnesses at the trial, a title expert, testified the description was one that "could be placed in only one spot on the face of the earth."
Leigh had sold a parcel to the north to Shuler two years before the Steele purchase. The description in the Shuler deed was as follows: "Beginning at a point 1047 feet North of the Southwest Quarter Section Corner of Section 24, Township 23 North, Range 3 East M.D.B.& M., thence East a distance of 384 feet; thence North 150 feet; thence West 384 feet; thence South 150 feet to point of beginning."
It will be noted that this description does not state terminal points. It will also be noted that since its south boundary lies 1047 feet north of the south section line there could be no possible overlap between the Steele and Shuler properties so far as the recorded deed descriptions are concerned.
Testimony was produced by Shuler that when he bought from Leigh he and the grantor went onto the ground; Shuler selected the site he wanted; and the parties then and there fixed the southeast corner by cutting a blaze on a witness tree at the edge of the county road. He also testified that after Steele purchased he, Shuler, showed him the blazed tree and indicated the south line running due west therefrom. Steele denied this and testified that Shuler had indicated that his south line was along some logs which Shuler had placed 18 or 20 feet to the north. He testified further that Germany had told him that the southwest corner of Shuler's property was at Shuler's gate. [3a] There was evidence produced by Steele disputing the fact that the blaze in the so-called "witness" tree was cut when Shuler testified it had been cut (in 1950). Steele produced a tree expert whose opinion would justify a finding that the blaze had not been cut until 1953. There was no reference to the blazed tree in the description in the original deed. On March 12, 1953, an amended deed from Leigh (through Holmes) to Shuler added a "more detailed" description. Again no reference is made to the now claimed blazed tree. The point of beginning in said amended deed is *703 still referred to as 1047 feet north of the southwest corner of the section with the south line running due east therefrom to the center line of the road.
[1c] Shuler after the purchase had gone onto the property, had cleared it of brush and had built a residence and out-buildings. The only improvement thereon at the time of Steele's purchase lying within the disputed area was a small roughly-constructed woodshed 6 feet by 8 feet in size, located 18 or 20 feet north of the south line as now claimed by Shuler. A fence along the road did not extend to the blazed tree. After Steele had bought his parcel, Shuler constructed a garage on the land now in dispute. Steele told him at the time that he thought that the garage was located on his (Steele's) side of the line. However, he did nothing to prevent its continued use.
In 1953 a survey was made. It was made at the suggestion of Hook, owner of the property adjoining Steele's on the south. Hook desired particularly to establish the west line of section 24. The survey was the joint undertaking of Hook, Steele and Shuler. It fixed on the ground the southwest corner of section 24; also its south and west lines. (The south line, as stated above, had been surveyed before either of these parties bought and its monuments had been established.) By measurement from said southwest corner it was possible to establish the north line of the Steele property as described in his deed; also the south line of Shuler's property according to his original deed (located from the point of beginning 1047 feet north of said southwest corner). Shuler's south line thus determined was 27.29 feet north of Steele's north line.
In the March 12, 1953 deed obtained by Shuler, the description, although indefinite, could be construed as intending to convey any land lying north of the Steele north line. Shuler, however, also obtained another deed from Leigh (signed by her husband Holmes as her "attorney in fact") recorded on October 2, 1953, the description of which contained a point of beginning on the west line of section 24, 965.92 feet north of the southwest corner of said section. This description runs the south line, parallel to the south line of the section, to the center line of the road. It is this description which causes the overlap in dispute here. For six years neither party made any move significant to this controversy (excepting that Shuler continued to occupy and have access to the garage located on the now-disputed land). Then in December 1959 Shuler extended the front fence of his property to the blazed tree and ran two strands of barbed wire in a westerly direction *704 from the tree to the west property line. These acts by Shuler were followed by (and precipitated) this action filed by Steele to quiet title to the disputed area. Shuler cross-complained to quiet his title and also claimed title by adverse possession.
After trial the court filed a memorandum decision. In it the court pointed out that although there was substantial evidence to support the contention that a blaze had been put in the tree "no action was taken by Shuler or by any of the parties concerned to use the pine tree as a monument. It was not referred to at any time in any instrument of record; nor were any measurements used which would coincide with the location of this tree; nor was any fence or barrier erected which would put another person on notice until December, 1959." This decision also stated: "Steele at the time of his purchase ... believed he was purchasing a pracel of land having a frontage along the center line of the county road of 547 feet; that in reliance upon such belief Steele completed his purchase and constructed his home and carport in such a manner that deprivation of the northerly 58 feet of his lot (being the approximate amount of the overlap which would be created under the description used in defendant's cross-complaint) would substantially and materially impair Steele's use of his property and the improvement constructed thereon." [fn. 2]
When, after having written the foregoing memorandum decision, the court made its findings, it did not find as a fact that the so-called "witness" tree had been blazed in 1950. Nor did the court find that, if the tree had been then blazed, it was shown to Steele when the latter bought. Nor did it find, if it was there and if it was so shown, that it was agreed by the parties to fix the boundary separating the two properties.
[4] A line agreed upon by adjoining owners, even though it is not the true line according to the respective deed descriptions, may become the boundary. (Loustalot v. McKeel, 157 Cal. 634, 641 [108 P. 707]; Spear v. Smith, 161 Cal.App.2d 744, 748 [327 P.2d 36].) [5] But "to establish an agreed boundary line there must be an actual designation of the line upon the ground and occupation in accordance therewith. To make the agreement binding, occupation in accordance *705 with the line so fixed must be acquiesced in by the parties for a period equal to that fixed by the statute of limitations, or for such a length of time that the parties ought not to be allowed to deny its correctness." (Shelton v. Malette, supra, 144 Cal.App.2d 370, 374.)
Shuler, under the facts here, does not bring himself within the foregoing conditions necessary to the establishment of boundary agreed upon or acquiesced in. Even as between Shuler and the original grantor, Leigh, there is no certainty that an agreement existed. [6] True, the trial court in its memorandum decision stated that there was substantial evidence to support the contention that a blaze had been put on the tree when Leigh deeded to Shuler in 1950, but, as stated above, no finding of fact was made of this (and actually the ultimate finding of fact is to the contrary). It is the findings filed and not the court's preceding memorandum opinion which control. [7] " 'While an opinion of the judge of the trial court will aid the appellate court in ascertaining the process by which a judgment has been reached it will not be considered in determining whether or not the verdict of the jury or the findings of the court are supported by the evidence.' " (Ciriniconi v. Green, 175 Cal.App.2d 812, 815 [346 P.2d 867].) [3b] Here, as stated above, there was substantial evidence to support the ultimate finding that the tree had not been blazed until 1953, a year after Steele had bought his lands.
[8] Moreover, it is not clear, even if the blazing of the tree did occur in 1950, that such act either was intended, or had the legal consequence, to constitute the fixing of the south boundary of Shuler's lands. The deed description, as we have seen, makes no reference to the blazed tree as a monument. Blazing of the tree could have been a mere indication by the parties as to where they thought the boundary line ran but not to fix the boundary should the line as shown by the description prove to be elsewhere. Under such facts the line incorrectly located does not become the fixed boundary. (Meacci v. Kochergen, 141 Cal.App.2d 207, 212 [296 P.2d 573]; Pra v. Bradshaw, 121 Cal.App.2d 267, 269 [263 P.2d 52]; Pedersen v. Reynolds, 31 Cal.App.2d 18, 28 [87 P.2d 51].)
[1d] And even had the tree been blazed in 1950, and even had Shuler and Leigh then intended this act to fix the boundary, it would still not necessarily have bound Steele. *706 The learned trial judge, as we have seen, stated in his memorandum decision that nothing had been done to put a subsequent purchaser on notice of the boundary line now contended for and he also stated that Steele believed he was purchasing a 547-foot frontage on the highway. There was nothing in the deed from Leigh to Shuler which was of record when Steele bought to indicate any overlap of the common boundary. On the contrary, it showed they were not even conterminus owners. Shuler's deed showed his south line to be 1047 feet north of the south section line, while Steele's deed established his north line approximately 1019.71 feet north of said section line. (And said south line was a fixed, surveyed line.) No portion of the disputed strip was occupied except by a garage and woodshed (to be discussed infra). [9] Appellant has cited the rule that "[i]f a disputed boundary line is agreed upon and acquiesced in by the parties, it is binding upon all parties to the agreement and their successors in interest." (8 Cal.Jur.2d 766, 767; Needham v. Collamer, 94 Cal.App.2d 609 [211 P.2d 308].) But this rule must be applied and considered in connection with another rule that a bona fide purchaser for value and without notice is entitled to protection against "undisclosed rights and titles." (50 Cal.Jur.2d 444; Bernhard v. Wall, 184 Cal. 612, 625 [194 P. 1040]; Civ. Code, 1214.)
A reading of the cases relied upon by appellant, Sharp v. Blankenship, 79 Cal. 411 [21 P. 842], Needham v. Collamer, supra, Togni v. Slocomb, 12 Cal.App. 733 [108 P. 723], Howatt v. Humboldt Min. Co., 61 Cal.App. 333 [214 P. 1009], Board of Trustees v. Miller, 54 Cal.App. 102 [201 P. 952], and Nebel v. Guyer, 99 Cal.App.2d 30 [221 P.2d 337], will disclose that all are distinguishable by the principles enunciated above. Shelton v. Mallette, supra, 144 Cal.App.2d 370, is authority against appellant.
[1e] The evidence, therefore, is sufficient to sustain the findings and judgment of the trial court that respondents Steele, husband and wife, are the owners in fee of the disputed parcel as described in the judgment; and we so hold. This does not dispose of the case entirely.
In its memorandum decision the court stated: "The Court finds that Shuler has been in possession since about 1951 of a small shed about 6 by 8 feet square located near Steele's northerly boundary, together with the right of ingress and egress thereto. The Court further finds that Shuler has been in possession since about 1953, or the forepart of 1954, *707 of a building used by Shuler as a garage, together with the driveway thereto, and together with the right to enter and go freely over and upon said driveway and garage."
When formal findings were prepared and filed no reference was made to the earlier opinion. [fn. 3] [10] Under the rule expressed above that formal findings and judgment cannot be superseded by an informal memorandum of opinion, we are powerless to substitute that which the court indicated it was going to decide for that which it did decide--if there is any substantial evidence to support the findings actually made.
[11] As regards the shed 6 feet by 8 feet in size it is such an insubstantial structure that we think under the maxim de minimis non curat lex its existence should not be considered by a court of equity as achieving the status of an easement, particularly where its value to Shuler cannot be much and the nuisance to Sheele by the servitude thus created on his lands for its continued existence would be great. The evidence in the record therefore justifies its exclusion by the trial court.
[12] The garage with its driveway is another matter. The evidence is without conflict that it was constructed by Shuler under a claim of right and that he had been in open, notorious and hostile possession thereof for a period of more than five years. It is a substantial structure. Its continued use is important to Shuler. He therefore has an exclusive and perpetual right and easement over Steele's lands by prescription to the garage with ingress thereto and egress therefrom over the existing driveway. The evidence does not substantiate a contrary finding. (2 Witkin, Summary of California Law, 190, p. 1928.)
The ground upon which the garage is located and the exact location of the driveway should be accurately described. This can better be accomplished in the trial court.
The judgment is reversed and the cause is remanded with *708 directions to the trial court (1) to take such further proceedings as may be necessary to determine the description of the ground on which said garage and driveway are located, and thereafter (2) to enter judgment for plaintiffs as in the original judgment, save and except that the plaintiffs' title to the land in said judgment described shall be subject to a perpetual right and easement in defendants to maintain and use the garage and driveway in accordance with the terms hereinabove expressed. This court determines that the interests of justice require that costs on appeal be, and they are hereby, awarded to respondents.
Schottky, J., and Van Dyke, J., [fn. *] concurred.
NOTES
[fn. 1] 1. Plaintiffs are Lloyd C. Steele and Anna E. Steele, husband and wife, defendants are J. D. Shuler and Ruth H. Shuler, husband and wife. Their common grantor is Clara J. Holmes who, however, held title as Clara J. Leigh. Counsel in their briefs refer to the parties as "Steele" and "Shuler" and to the grantor as "Leigh." We will, for convenience, adopt the same designations.
[fn. 2] 2. At Shuler's request a stipulation was entered into between the parties that the court might view the premises. From the court's statement quoted above it may be presumed that the judge did make this inspection, although the record is silent as to this. In any event appellant does not point to anything in the record contradicting the statement in the decision that deprivation of the disputed strip would materially impair Steele's use of his property.
[fn. 3] 3. The court's original memorandum opinion entitled "decision" was filed May 24, 1960. In this "decision" the court had expressed its opinion that findings of fact as quoted above would support a further finding that Steele's action pro tanto was barred by the statute of limitations but that such bar had not been pleaded. And the court indicated that it would permit an amendment to conform to proof. Shuler did not elect to amend. Instead on June 17, 1960 he filed a "Request for Reconsideration" by the court of the "decision" of May 24, 1960. This was denied. Formal findings were received July 29, 1960. No objection thereto as presented was made and they were signed August 12, 1960 and filed August 16, 1960.
[fn. *] *. Retired Presiding Justice of the District Court of Appeal sitting pro tempore under assignment by the Chairman of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2394990/ | 306 Md. 172 (1986)
507 A.2d 1098
JOHN BOOTH A/K/A MARVIN BOOTH
v.
STATE OF MARYLAND.
No. 151, September Term, 1984.
Court of Appeals of Maryland.
May 7, 1986.
Certiorari; judgment vacated to the extent it affirmed, cause remanded June 15, 1987.
Certiorari granted October 14, 1986.
Julia Doyle Bernhardt and George E. Burns, Jr., Asst. Public Defenders (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.
Valerie V. Cloutier, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.
Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.
Certiorari to the Supreme Court of the United States; judgment vacated to the extent it affirmed the capital sentence, cause remanded to the Court of Appeals for further proceedings not inconsistent with the opinion of this Court, June 15, 1987.
Certiorari granted, Supreme Court of the United States, October 14, 1986.
RODOWSKY, Judge.
We shall affirm the judgments of conviction and death sentence in this case for the reasons set forth below. Of the nineteen issues raised on appeal only issues eight through ten present questions of any novelty. These deal with the right of allocution conferred by a Maryland Rule of Procedure which was made applicable to capital cases as of July 1, 1984.
Appellant, John "Ace" Booth (Booth), and his friend, Willie "Sweetsie" Reid (Reid), in order to obtain money for heroin, on May 18, 1983, robbed and murdered an elderly couple in the victims' home. The victims were Irvin Bronstein, age 78, and his wife, Rose, age 75. Their bodies were found by their son on May 20 in the living room of their home. Each had been stabbed in the chest twelve times, after having been bound and gagged. Mr. Bronstein was found reclining face up on the sofa, with a cloth covering his face. Mrs. Bronstein was found face down on the floor. Their home had been ransacked. Property, including television sets, jewelry, and their 1972 Chevrolet Impala automobile, had been taken. The police found the automobile abandoned and partially stripped on the parking lot of the Flag House high-rise public housing projects in East Baltimore. The police were able to associate Booth with the abandoned car and arrested Booth June 7, 1983.
The first trial of the charges against Booth, before Honorable James W. Murphy, ended in a mistrial on April 23, 1984. See Booth v. State, 301 Md. 1, 481 A.2d 505 (1984). At retrial, a jury presided over by Judge Edward J. Angeletti in the fall of 1984 heard both the guilt or innocence phase and the sentencing phase. The jury found Booth guilty of the murder of Mr. Bronstein in the first degree, both premeditated and felony, and found that Booth was a principal in the first degree to that murder for which they imposed the death sentence. The jurors found Booth guilty of murder in the first degree of Mrs. Bronstein for which the court imposed a life sentence.[1] Booth also received three consecutive sentences of twenty years each, the first of which was consecutive to the life sentence, for the robbery of Mr. Bronstein, the robbery of Mrs. Bronstein, and for conspiring with Reid and with his nephew, Darrell Brooks, to rob the Bronsteins.
On this appeal Booth challenges the sufficiency of the evidence against him only as to the charge of conspiracy to rob. Neither Booth nor Reid testified as witnesses at Booth's trial at which the jury could have found the following facts on guilt or innocence.
The Bronsteins lived at 3412 Rockwood Avenue in West Baltimore. Booth, age 29 at the time of the murders, lived with his mother at 3416 Rockwood Avenue. Booth's friend Reid lived with his girlfriend, Veronda "Ronnie" Mazyck and her two sons, age nine and four at the time of the murders, in Ms. Mazyck's apartment at 400 Aisquith Street in East Baltimore. On May 18, 1983, Booth met Reid at Mazyck's apartment at about 4:00 p.m. Mazyck went out with her children and, when she returned about 8:00 to 8:30 p.m., no one was at home. Reid and Booth returned to the apartment at about 9:00 p.m. They had heroin which Booth, Reid, and Mazyck injected. Reid also had a small brown paper bag filled with jewelry.
When the contents of the bag were spread on a tabletop, Mazyck commented that the jewelry was cheap to which Reid, in the presence of Booth, replied that it was "white people's shit." In response to a question from Mazyck, Reid, in Booth's presence, said he had made a "hustle" which Mazyck interpreted as meaning that "they went out and stole it."
At some point Booth telephoned his girlfriend, Jewell "Judy" Edwards,[2] who lived in the 2600 block of Harford Road, and asked her to meet him at Mazyck's apartment. Booth wanted Edwards to drive a car. She was a licensed operator but Booth, Reid, and Mazyck were not licensed.
Renee "Tony" Collins, a 17-year-old mother of two children who lived in the apartment across the hall from Mazyck, dropped by Mazyck's apartment while the jewelry was spread on the table. Booth and Reid asked her if she wanted to buy any of it. While Ms. Collins was in the apartment, Eddie Smith, his girlfriend, and another couple stopped by the apartment. Smith paid Reid $2 so that he and his companions could use the apartment to inject themselves with heroin. Ms. Collins heard Booth and Reid asking "the junkies" for the use of a car so that Booth and Reid could pick up some television sets.
When Ms. Edwards arrived at the Mazyck apartment, Booth explained that he wanted her to drive the car of a friend of his and that he needed someone who had a driver's license in the event the car was stopped by the police.
Late on the evening of May 18 or early in the morning of May 19 all of the adults left the Aisquith Street apartment. Smith and his companions went their separate way. Booth and Ms. Edwards, Reid and Ms. Mazyck told Ms. Collins that they were going "[t]o pick up the T.V.'s."
The two couples took a cab to Booth's mother's home. Booth went in the house while the other three remained outside. Booth came out with green plastic trash bags. He then went back into his mother's house and came out with gloves for everyone to wear. The group then went to the rear of the Bronstein home. Before entering, Booth pointed the Bronsteins' car out to Ms. Edwards as the car which she would be driving and handed her the keys to the car. Also before the group entered the Bronstein home, Booth told the women that they should pay "no mind" if they saw any dead bodies.
The two couples entered the house through the rear door and the two women saw the bound and gagged corpses of Mr. and Mrs. Bronstein in the living room. The group looted the house and loaded the loot, including two television sets, into the Bronsteins' car. When someone realized that they had left a trash bag in the house, Booth said not to worry because the police would think that the bag had been left by people who were working on the Bronsteins' lawn that day.
The two couples returned with the loot to the Aisquith Street apartment. Booth and Reid obtained heroin and the couples "fired up" and went to bed, Reid and Ms. Mazyck in the bedroom, while Booth and Ms. Edwards used a sofa bed in the living room. While lying in bed Ms. Edwards asked Booth if the people whom she had seen in the house were actually dead, and Booth replied that they were and that he had killed the man while Reid had killed the woman.
The next morning Ms. Mazyck asked Booth why the elderly couple had been killed, and Booth told her that it was because the elderly couple knew Booth and his nephew.
Issues as to Guilt or Innocence
I
During voir dire of prospective jurors Booth had moved to strike one of them for cause and the motion was denied. Booth argues that the juror had heard that a previous guilty verdict had been overturned and had stated that he would give more weight to the testimony of a police officer than to other witnesses. Error, if any, in denying the challenge was waived and was harmless beyond a reasonable doubt. The venireman in question did not serve as a juror and was not the object of the exercise by the defense of one of its allotted peremptory challenges. The jury was impaneled without Booth's having exhausted all of his peremptory challenges. Immediately prior to the State's calling its first witness defense counsel advised the court that "the Court's jury is acceptable to the defense subject to the previous objections that have been made with regard to the Witherspoon matter, and bifurcation." See Foster v. State, 304 Md. 439, 450-51, 499 A.2d 1236, 1241-42 (1985) and cases cited therein.
II
Appellant's second issue reaches back into the period preceding the aborted first trial and asserts that the circuit court erred in denying an oral defense motion that the court order Veronda Mazyck to submit to a psychiatric examination by a particular psychiatrist who had been identified in discovery as an expert witness for Booth. The point is frivolous.
On the afternoon of March 27, 1984, the defense supplemented its answer to the State's motion for discovery and advised that Booth intended to call Dr. John Henderson to explain records of Johns Hopkins Hospital relating to Ms. Mazyck's condition and treatment in April-May 1982. At a pretrial hearing on April 3, 1984, the State orally moved that Judge Murphy preclude the defense from using the hospital records and from having expert testimony based upon them. The prosecutor represented that the records related to psychiatric treatment. He then called Ms. Mazyck as a witness in support of the motion. She testified to her preference that any such records be kept secret and said that she had not consented to the release of any such records. The purpose of this testimony was to lay a foundation for a legal argument, to be made on a later day, that the records represented privileged communications between patient and psychiatrist as recognized in Md. Code (1974, 1984 Repl. Vol.), § 9-109 of the Courts and Judicial Proceedings Article.
Jury selection for the first trial started on April 9, 1984, and continued through April 11. Late in the day of April 11 defense counsel delivered to the State a memorandum in opposition to the State's motion to preclude. Appellant contended that the records showed Ms. Mazyck was diagnosed as an alcoholic and a polydrug abuser, who had experienced auditory and visual hallucinations and memory blackouts. Booth submitted that those conditions affected Ms. Mazyck's credibility and that Dr. Henderson was needed to explain technical matter in the hospital records to the jury.
At argument before Judge Murphy on April 12 the State ultimately took the position that the hospital records could be admitted but only through the particular attending physician whose opinions on medical matters were contained therein. The court ruled that it would permit use of the psychiatric records if the defense brought in the doctor who had made the diagnosis. Defense counsel said that she would certainly try to do that. The court further indicated that if the attending doctor was not available he would allow Dr. Henderson to testify to the meaning of terms in the medical records. After the court had quickly disposed of certain unrelated matters, defense counsel orally moved "that the court order that Veronda Mazyck make herself available for examination by one of our doctors, Dr. Henderson." When the State asked if the defense were questioning Ms. Mazyck's "capacity" to testify as a witness, defense counsel replied that "capacity is a very difficult hurdle to make. Her competency is what the State is talking about, I imagine." At that point Judge Murphy denied the motion, without stating any reason for the ruling.
On the afternoon of Friday, April 13, opening statements were made to the jury and the first witness in the State's case was heard. On the following Monday, April 16, at 10:07 a.m. counsel for Booth filed a motion, together with an order signed by Judge Murphy, directing the production of the Johns Hopkins Hospital Comprehensive Alcoholism Program records on Ms. Mazyck. The motion recited that the evidence of Ms. "Mazyck's alcoholism is relevant to her credibility as a witness for the State in this case." That afternoon Ms. Mazyck began her direct examination testimony at the first trial. Her direct was resumed on the morning of April 17. Cross-examination, which began that morning and continued well into the afternoon, encompasses seventy pages of transcript. The hospital records were used in the cross-examination and were marked for identification.
At the retrial Ms. Mazyck was again examined and cross-examined at length, including cross-examination about the extent and effects of her drug and alcohol abuse.
In his brief on this appeal Booth characterizes the trial court's refusal to order a psychiatric examination of Veronda Mazyck as a ruling on a motion for an examination "by a defense doctor on the issue of whether she was competent to testify." At no time, either in connection with the trial or retrial, did appellant move to exclude testimony from Ms. Mazyck on the ground that she was incompetent to be a witness. At no time did appellant present any medical opinion, by affidavit or otherwise, that it was likely that Ms. Mazyck was incompetent.
"The test of incompetency is whether the witness has `sufficient understanding to appreciate the nature and obligation of an oath and sufficient capacity to observe and describe correctly the facts in regard to which [the witness] is called to testify.'" [Evans v. State, 304 Md. 487, 507, 499 A.2d 1261, 1271 (1985) (quoting from Johnston v. Frederick, 140 Md. 272, 281-82, 117 A. 768, 771 (1922)).]
While Judge Murphy did not state for the record his reason for denying appellant's oral motion of April 12, 1984, the court could have viewed the request as an attempt to lay a foundation for Dr. Henderson to express opinions which Booth would then argue were relevant to credibility, as opposed to competency. Were that the basis of the ruling, there would be no abuse of discretion. A trial judge has discretion to determine whether opinion evidence of questionable relevance will be sufficiently helpful to the jury. See Stebbing v. State, 299 Md. 331, 350, 473 A.2d 903, 912, cert. denied, ___ U.S. ___, 105 S. Ct. 276, 83 L. Ed. 2d 212 (1984).
If, however, we consider that appellant's oral motion was, as appellant now contends, a motion directed to Ms. Mazyck's competency to testify, Judge Murphy had already observed her when she testified briefly on April 3, 1984. That personal observation, coupled with the lack of any objection to competency at that time, would furnish an appropriate basis for the court's ruling.
In any event, when "determining whether a request for a mental examination should be granted, ... a trial judge should carefully balance the demonstrated necessity for a compelled examination against the existence of important countervailing considerations." Evans, 304 Md. at 508, 499 A.2d at 1272. Here the appellant possessed copies of the hospital records of Ms. Mazyck's psychiatric treatment by the time she testified at the first trial, if not earlier. But for the ambiguous and somewhat off-handed oral motion of April 12, 1984, appellant's position in the trial court was that the records were relevant to credibility. Ms. Mazyck testified at length at two trials without her demeanor causing either the court or counsel to question her competence. Under these circumstances appellant has failed to show that there was any abuse of discretion in the denial of the oral motion.
III
This issue concerns an alleged error in the admission of evidence during the direct examination by the State of Eddie Smith. Smith testified that he had injected himself with heroin in Mazyck's bathroom in the presence of Reid with whom Smith had had a conversation. The State then questioned Smith as follows:
Q. After you left the bathroom
A. Right.
Q. what, if anything, did you say to this defendant [Booth], and use the exact words as best you can remember?
A. I asked Ace what was Sweetsie talking about, he said
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Q. [STATE'S ATTORNEY]: You may answer.
A. He [Reid] said he had just killed a couple mother fuckers.
Q. Did Ace respond to what you said?
A. Yes, he did.
Q. What, if anything, did he say?
A. He [Booth] said he [Reid] was just exaggerating, you know, talking something, he didn't know what he was talking about. [Italics added.[3]]
A colloquy at the bench which had followed objection to an earlier form of the same question developed the basis for the objection to be hearsay. Booth briefs this evidence point alternatively. He says that if the ruling was based on the theory that Reid and Booth were co-conspirators in a conspiracy to rob, Reid's statement to Smith was not admissible against Booth because any conspiracy to rob had terminated. Booth further contends that Reid's statement cannot be admissible as part of an admission against interest made by Booth because, when told of Reid's statement, Booth's response "adds up to a clear-cut denial." McCormick on Evidence § 270 (E. Cleary 3d ed. 1984).
There was no error. Booth's response that Reid was exaggerating and did not know what he was talking about was an admission by Booth. Smith's conversation with Booth took place while Reid and Booth anticipated returning to the Bronsteins' home in order to steal more property, but before they had left Aisquith Street to go to the Bronsteins' for the second time. Under all of the evidence the jury could consider Booth's statement as an effort to minimize and cover up Reid's incriminating statement to Smith so that Smith would not, even inadvertently, upset the joint plan of Reid and Booth to return to the murder scene with a licensed driver.
IV
This assignment of error is directed at an instruction to the jury concerning premeditation. The court defined premeditation in its charge and no exception was taken to that definition.[4] The court told the jury in Booth's case "that you may consider the multiple injuries and their intensity suffered by the victim as providing adequate evidence of premeditation." Booth challenges the latter instruction. Citing People v. Anderson, 70 Cal. 2d 15, 447 P.2d 942, 73 Cal. Rptr. 550 (1968); People v. Hoffmeister, 394 Mich. 155, 229 N.W.2d 305 (1975); and Austin v. United States, 382 F.2d 129 (D.C. Cir.1967), he contends that "the number of injuries cannot, alone, constitute proof of this element." (Emphasis in original).
We initially note that the challenged instruction merely told the jury that it "may consider" the multiple wounds as adequate evidence of premeditation, but the instruction did not limit the jury's consideration of all of the evidence when applying the definition of premeditation.
Further, the proposition which appellant distills from the cases cited by him is contrary to Maryland law. The intervals between the stab wounds inflicted on Mr. Bronstein evidence sufficient time for reflection and decision. See Ferrell v. State, 304 Md. 679, 684, 500 A.2d 1050, 1052-53 (1985); Colvin v. State, 299 Md. 88, 109, 472 A.2d 953, 963-64 (1984); Hyde v. State, 228 Md. 209, 216-17, 179 A.2d 421, 424-25 (1962); Cummings v. State, 223 Md. 606, 611-12, 165 A.2d 886, 888-89 (1960); Kier v. State, 216 Md. 513, 522-23, 140 A.2d 896, 900 (1958); and Chisley v. State, 202 Md. 87, 106-09, 95 A.2d 577, 585-87 (1953).
Finally, the evidence of premeditation in the instant case is not limited to the multiple wounds. Mr. Bronstein was stabbed when his hands were tied behind his back, and Booth admitted to Ms. Mazyck that the people were killed because they knew Booth and his nephew.
V
Booth contends that the evidence was legally insufficient to support his conviction for conspiracy to rob. The principle which appellant says applies here is that there must be, in addition to evidence of the commission of a robbery, evidence that a meeting of minds occurred prior to the commencement of the robbery. Here no witness testified to what transpired between Booth and Reid prior to, or at the time of, the first entry into the Bronsteins' home in the late afternoon or early evening of May 18, 1983.
Booth's argument is fully answered by the statement of facts which opens this opinion. The direct evidence is that by 9:00 p.m. on the day of the murders Booth and Reid were at Ms. Mazyck's apartment with loot from the Bronsteins' home and that they planned to return there with a licensed driver in order to use the Bronsteins' car to haul away more loot. This evidence supports the reasonable inference that Booth and Reid were acting in concert during the initial entry when the robberies of Mr. and Mrs. Bronstein occurred. From the standpoint of conspiracy to rob it is immaterial whether the robberies committed during the first entry are viewed as fully consummated crimes or merely as the earlier phase of continuing robberies which concluded when Booth et al. returned to the Bronsteins' home later that night.
Another inference, theoretically consistent with the direct evidence, would be that Booth and Reid met coincidentally at the Bronsteins' home at the time of the earlier entry and commenced separate robberies acting independently of each other. That alternative is absurd.
VI
During jury selection appellant objected to the disqualification of potential jurors who expressed opposition to the death penalty. He also expressly requested that two juries be impaneled, one to determine guilt or innocence which would include opponents of the death penalty, and another to determine sentence if that were to become necessary. There was no error in excluding prospective jurors opposed to capital punishment or in refusing to impanel separate juries. The arguments advanced by Booth here were fully considered and rejected on the merits in part I B of our recent opinion in Foster v. State, 304 Md. 439, 453-66, 499 A.2d 1236, 1243-51 (1985).
VII
In its instructions to the jury at the guilt or innocence phase the trial court had included the following paragraph.
The general rule is that there is an inference of guilt which arises from the possession of recently stolen property. Upon proof of the corpus delicti, the inference is strong enough to establish the criminal agency of the possessor of such goods and thus to sustain the conviction. If a robbery with a dangerous and deadly weapon is proved to have been recently committed, the inference is that the possessor of goods taken during its commission was the robber.
Booth submits that by saying "the inference is" the trial court improperly converted an inference into a presumption because only presumptions can be stated as existing whereas inferences exist only if and when the trier of fact has chosen to find them.
This point has not been preserved for appellate review. Maryland Rule 4-325(e) provides that "[n]o party may assign as error the giving or the failure to give an instruction unless the party objects on the record ... stating distinctly the matter to which the party objects and the grounds of the objection." In the instant case the trial judge prepared his instructions in writing and gave counsel the opportunity to review and to take exceptions to them in advance of his reading them to the jury. Booth did not except to that portion of the charge of which he now complains.
Furthermore, were the matter properly before us, we would hold that there was no prejudicial error in light of the charge as a whole. The trial judge instructed the jury generally on inferences in a portion of his charge which preceded, and which was separated by only two paragraphs from, the paragraph in which Booth now claims error lies. The general charge read:
There are two types of evidence which the jury may consider in this case, direct or circumstantial evidence. Direct evidence is the evidence that is attributable to actual knowledge of a fact such as an eyewitness. Circumstantial evidence is that which proves the facts indirectly or facts and circumstances from which an inference may arise. The law makes no distinction between direct and circumstantial evidence. No greater degree of certainty is required of circumstantial evidence than direct evidence since in either event you must be convinced of the defendant's guilt beyond a reasonable doubt.
You are further instructed that in a criminal case the defendant is entitled to every inference which can reasonably be drawn from the evidence and where two inferences can be drawn from the same evidence, one consistent with guilt and one consistent with innocence, the defendant is entitled to the inference which is consistent with his innocence.
Issues Relating to Sentencing
VIII, IX and X
Appellant's eighth, ninth, and tenth contentions will be considered together because they involve the exercise by Booth of the right of allocution in capital cases conferred by Maryland Rule 4-343. Subsection (d) provides: "Allocution. Before sentence is determined, the court shall afford the defendant the opportunity, personally and through counsel, to make a statement."
After Booth had been found by the jury to be guilty of Mr. Bronstein's murder, that same jury sat to determine whether his sentence should be life imprisonment or death. The State's case at the sentencing phase consisted entirely of the presentence investigation report and the victim impact statement. After nonparty witnesses for the defense had testified, Booth and his counsel approached the bench. Counsel repeated on the record advice previously given Booth concerning his right to testify. Counsel told Booth that if he decided not to testify he still had "the right to allocute," which was explained as "the right to tell the jury why you feel they should not execute you." Counsel said that the court would instruct the jury that Booth's failure to testify could not be held against him, but when counsel asked the court to confirm the legal accuracy of that statement the judge replied: "No, I don't believe that's accurate. That only held true for the guilt or innocence phase of this trial." The court said it was "directly up to Mr. Booth whether he wants to testify or not at this point. Nothing will be said to the jury about that." After further discussion the court agreed with Booth's request that he be allowed to consider the matter overnight and advise of his decision the following morning.
The next morning Booth said that he would not testify but that he would allocute. At the court's request Booth explained the difference in his own words.
Well, if I testify, I would be subject to cross-examination by the counsel for the State and if I allocute, I can't be cross-examined well, I won't be cross-examined.
THE COURT: All right. Do[ ]you will make an argument to the jury concerning whatever you want to say to the jury; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: All right. You understand that you will not be under oath and you will not be examined by anyone as to what you say to the jury?
THE DEFENDANT: Yes sir.
The jury was then brought into the courtroom and told by the judge that "the defendant has the right to address you and say whatever it is he wishes to say to you concerning the matters that you are going to be deliberating on." Booth, who had elected not to testify at the guilt or innocence phase, opened his statement to the jury by saying that "I finally get a chance to say something to you." In his address, which transcribes to seven and one-half pages, Booth denied killing anyone. He admitted only to having entered the Bronstein home late in the evening, after the murders had been committed, in order to steal. He attacked the prosecutors for fabricating statements of witnesses and putting words in their mouths. He said his general occupation was being a thief but he was not a robber or murderer.
In its summation the State told the jury, over objections by defense counsel, that Booth's statement was not evidence, that Booth, in order to avoid cross-examination, had not taken the witness stand, and that Booth had lied to the jury and should not be believed.[5]
In his brief to us Booth argues that the trial court erred (a) in allowing the State to argue that Booth's "allocution was not evidence to be considered by the jury," (b) "in permitting the prosecutor to comment on appellant's failure to testify at his capital sentencing proceeding," and (c) "in refusing to instruct the jury that it could not draw any inference adverse to appellant from his failure to testify during the sentencing proceeding." Before we can address these specific assignments of error, we must explore the nature of the "allocution" here involved.
After January 1, 1979, and prior to the revision of the Maryland Rules effective July 1, 1984, there was no rule applicable to allocution in capital cases. There was, however, an allocution rule applicable to noncapital cases, former Rule 772 d. At the Rules Committee meeting of October 15/16, 1982, a member proposed that the allocution rule apply to capital cases as well. Minutes of the committee reflect that certain benefits of such a change were discussed. These were the opportunity for the defendant "to make a statement in favor of imposition of a sentence of life imprisonment as opposed to death" and that, because in a court sentencing in a capital case a judge would likely never refuse a request by the defendant to make a statement, the absence of a provision for allocution before a jury in capital cases might raise constitutional questions. As burdens to be anticipated from the proposal one member pointed to the existing complexity of capital cases while the chief of the Criminal Division of the Attorney General's Office anticipated concerns in State's Attorneys' offices "about unsworn statements being made by the defendant immediately prior to the jury's retiring to consider its verdict." The Rules Committee then voted to recommend to this Court that the rule applicable to noncapital cases be amended as follows (brackets indicate matter to be deleted and italics indicate matter to be added to the text of former Rule 772 d, then tentatively renumbered Rule 4-703(d) in the Committee's working draft for the rules revision project):
Before imposing sentence, the court shall [inform] afford the defendant [that he has the right] the opportunity, personally and through counsel, to make a statement and to present information in mitigation of punishment[, and the court shall afford an opportunity to exercise the right].
That recommendation is now Rule 4-342(d).
The Committee also decided to make the amended allocution rule applicable to capital cases, with the further deletion of the provision for presentation of information in mitigation of punishment. That recommendation is now Rule 4-343(d).
The obvious purpose of Rule 4-343(d) is to afford the death penalty eligible, convicted murderer the opportunity to make an unsworn statement in mitigation of the death penalty without being subject to cross-examination. In this respect the statement is similar to closing argument, but it is not completely analogous to closing argument because the factual content of the allocution is not limited, in general, to the record in the case, inferences therefrom, and matters of common human experience. In that allocution is unsworn and is not subject to cross-examination, it is not testimony in the conventional sense. Nevertheless, allocution may be considered by the sentencing authority. Under Md.Code (1957, 1982 Repl.Vol., 1985 Cum.Supp.), Art. 27, § 413(g)(8) the sentencing authority may find by the preponderance test "[a]ny other facts which the [sentencing authority] specifically sets forth in writing that it finds as mitigating circumstances in the case."[6] In Booth's case, after the jury had found the aggravating circumstance of murder in the course of robbery, the jury was free to find as a mitigating circumstance such aspect of the content of Booth's allocution on which the jury could unanimously agree, simply by specifically setting it forth on the sentencing form. Further, if the jury found any such mitigating circumstance in the allocution the jury was obliged to weigh that mitigating factor in determining whether the sentence should be life or death.
Within the bounds of permissible jury argument the prosecutor's summation honored the principles discussed above. Counsel for the State contrasted Booth's allocution with the elevated level of evidence which is sworn testimony subject to cross-examination. The record does not factually support Booth's contention that the prosecutor told the jury that it could not consider Booth's allocution. Indeed, the entire thrust of the argument objected to by Booth was a recognition by the State that the jury could consider the content of Booth's statement to be true, but that the jury should not.
Among the reasons given by the State why the jury should reject as false the content of Booth's allocution was that it was unsworn and was not subject to cross-examination. Because the content of a convicted defendant's allocution may be considered by the jury or court in mitigation, the State, as a matter of nonconstitutional Maryland law, may comment on that allocution and urge its rejection by arguments which may include attacking the defendant's credibility by explicit reference to the lack of an oath and to the lack of testing by cross-examination.
Booth further submits that such comment violates his Fifth Amendment protection against compulsory self-incrimination because it is also a comment on Booth's failure to testify at the sentencing proceeding.
Appellant's argument assumes as its major premise the applicability here of the rule in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). After Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964) had held that the Fifth Amendment prohibition against compulsory self-incrimination was applicable to the states through the due process clause of the Fourteenth Amendment, Griffin held that references by a California court and prosecutor to Griffin's failure to testify violated the United States Constitution. The case was a two-stage death penalty trial. Griffin had not testified at the guilt or innocence stage. The court had instructed the jury that it could take into consideration on the issue of guilt Griffin's failure to deny or explain evidence which he would reasonably be expected to deny or explain because of facts within his knowledge. In argument the prosecutor had enumerated aspects of the case which the defendant had not seen fit to explain or deny by taking the stand. Such comment on the refusal to testify was held to be "a penalty imposed by courts for exercising a constitutional privilege [which] cuts down on the privilege by making its assertion costly." Id. at 614, 85 S. Ct. at 1232-33, 14 L.Ed.2d at 109-10.
The right is also infringed where the government elicits on cross-examination of the defendant at a second retrial that the defendant had not testified at the prior trials. See Stewart v. United States, 366 U.S. 1, 81 S. Ct. 941, 6 L. Ed. 2d 84 (1961). Nor is a procedure constitutionally permissible which requires the defendant to testify as the first witness in the defense case or not at all. Brooks v. Tennessee, 406 U.S. 605, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972). In Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981), the Court held that a defendant who had not testified was entitled, upon request, to an instruction that his election not to testify could not be used as an inference of guilt and should not prejudice him in any way. The Court reasoned that
[j]ust as adverse comment on a defendant's silence "cuts down on the privilege by making its assertion costly," [Griffin, 380 U.S.] at 614 [85 S.Ct. at 1232], the failure to limit the jurors' speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of the privilege. [450 U.S. at 305, 101 S. Ct. at 1121, 67 L.Ed.2d at 254.]
Even though such an instruction calls attention to the failure of the defendant to testify there is no Fifth Amendment violation in a court's giving the instruction without request because the instruction is not adverse to the defendant and "cannot provide the pressure on a defendant found impermissible in Griffin." Lakeside v. Oregon, 435 U.S. 333, 339, 98 S. Ct. 1091, 1095, 55 L. Ed. 2d 319, 325 (1978).
It has also been determined that at least certain aspects of the privilege against compulsory self-incrimination apply to one who invokes the privilege after that person has been found guilty and before sentencing. We have held that one who had plead guilty but who had not yet been sentenced could not be compelled to be a witness at the trial of a co-defendant on the same charges. Smith v. State, 283 Md. 187, 388 A.2d 539 (1978), cert. denied, 439 U.S. 1130, 99 S. Ct. 1050, 59 L. Ed. 2d 92 (1979). The Supreme Court has also addressed an aspect of the Fifth Amendment right arising out of the sentencing phase of a two-phase capital murder trial in Texas. Texas law requires finding future dangerousness, inter alia, before imposing a death penalty. In Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), the accused, while confined in jail on the murder charge, had submitted to a pretrial psychiatric examination informally ordered by the trial judge to determine the accused's capacity to stand trial. The psychiatrist did not give any Miranda warnings. The state used the defendant's statements against him in the sentencing proceedings. This was held to violate the Miranda rule. Answering contentions that incrimination was complete once guilt had been adjudicated and that the Fifth Amendment privilege had no relevancy to the penalty phase of a capital murder trial, the Court said:
We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment. Yet the State's attempt to establish respondent's future dangerousness by relying on the unwarned statements he made to [the psychiatrist] similarly infringes Fifth Amendment values. [451 U.S. at 462-63, 101 S. Ct. at 1873, 68 L.Ed.2d at 369 (footnotes and citations omitted).]
In the case before us Booth combines the Griffin prohibition against adverse commentary on silence and the Estelle recognition that there can be self-incrimination after a finding of guilty to urge that the prosecutor's jury argument at his sentencing violated his Fifth Amendment rights. Booth's contention ignores the fact that he did not remain silent and that the prosecutor's comments were directed at Booth's allocution. When more bluntly stated Booth's argument is that the law must pretend that he remained silent because MD.R. 4-343(d) benefited him by allowing him to make for the jury's consideration a statement which was unsworn and not subject to cross-examination. We will not construe this state's prohibition against self-incrimination to incorporate such a fiction.[7]
The remaining question is whether the prohibition against compulsory self-incrimination in the Fifth Amendment to the United States Constitution, as applicable to Maryland through the Fourteenth Amendment, imposes a contrary rule. We assume that, if Booth had neither testified nor allocuted at the sentencing phase, the Griffin rule would continue to apply. Further, if Booth had testified under oath and subject to cross-examination at his sentencing he would have waived the Fifth Amendment privilege. Cf. Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917) (testimony by accused at unitary trial is a waiver). Allocution under Rule 4-343(d) falls between the two. Booth's allocution is more like testimony than silence and for Fifth Amendment purposes is testimonial, carrying with it, at a minimum, a waiver of any privilege to avoid comment by the prosecutor on the allocution.
Although the Supreme Court seems not directly to have addressed this problem, considerable light is cast on it by a capital case from Ohio reported with McGautha v. California, 402 U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971), vacated on other grounds, 408 U.S. 941, 92 S. Ct. 2873, 33 L. Ed. 2d 765 (1972).[8] Under the then Ohio procedure the decision on guilt or innocence and, if guilt, the jury role in sentencing were accomplished in one proceeding. Unless the jury, when returning a verdict of guilty of murder, also recommended mercy, a death sentence was automatic. The defendant contended that this procedure placed unconstitutional pressure on him to testify because, if he remained silent with respect to guilt or innocence, as he had done, he suffered imposition of the death penalty without the jury ever having heard him speak in mitigation of that punishment. The Court did "not think that Ohio was required to provide an opportunity for petitioner to speak to the jury free from any adverse consequences on the issue of guilt." 402 U.S. at 220, 91 S.Ct. at 1474, 28 L. Ed. 2d at 734. A fortiori, Maryland is not required, when it provides an opportunity for the person found guilty of capital murder to speak to the jury in mitigation of sentence, to make that allocution free from any adverse consequences on the issue of sentence. Having the State argue that allocution is unsworn, not subject to cross-examination, not evidence, and not to be believed is not as adverse as the procedure which passed constitutional muster in McGautha.
The issue now before us was presented in a highly analogous format in Jones v. State, 381 So. 2d 983 (Miss.), cert. denied, 449 U.S. 1003, 101 S. Ct. 543, 66 L. Ed. 2d 300 (1980). The Mississippi constitution guarantees an accused the right to argue his case to the jury. Jones was a two-stage capital murder prosecution. The defendant had not testified on guilt or innocence but elected to argue at the sentencing phase. In his "argument" he told the jury, as facts, matters which were not in evidence. The prosecutor objected on grounds, apparently expressed in the presence of the jury, which included the following:
That's testifying and there's no way to contradict that and it's not fair, Judge, if he doesn't take the stand and let the State cross examine him on this but to stand up here and to be able to do something that the State does not have a right to cross examine him on is not proper.... The State didn't have a right to call him, Judge. We couldn't put him on the stand. [381 So.2d at 998.]
The Supreme Court of Mississippi ruled that the state constitutional right to argue and the rights of the accused under Griffin
create a conflict which requires a defendant to make a choice. If he chooses to argue his case to the jury and at the same time invokes the Fifth Amendment, he must confine his remarks to the evidence in the record. The Fifth Amendment privilege against self-incrimination is a shield, not a sword. A criminal defendant who takes advantage of his right to argue his case to the jury must not be permitted to say all the things he might have testified to had he chosen to call himself as a witness. When he does so, he will be deemed to have waived the right not to have his failure to take the stand commented upon. [381 So.2d at 993.]
And further:
The practical solution to the dilemma presented by the accused who uses his constitutional right to argue his case to the jury to give, what is for all practical purposes, testimony is to treat the unsworn testimonial statements of the accused which were not supported by the record as a partial waiver of the privilege against self-incrimination. It is not a total waiver of the privilege, since the prosecution is unable to cross-examine the accused at this late stage of the trial. But the prosecution may comment to the jury that the defendant's statements were not given under oath and that he was not subject to cross-examination about them. [Id.]
Williams v. State, 445 So. 2d 798 (Miss. 1984), cert. denied, ___ U.S. ___, 105 S. Ct. 803, 83 L. Ed. 2d 795 (1985) held that, unlike Jones, supra, there was no waiver where the defendant's opening statement at a capital sentencing hearing asserted self-defense which was already in evidence, albeit not in detail, via admissions related by police witnesses.
At the trial resulting in the conviction attacked in State v. Bontempo, 170 N.J. Super. 220, 406 A.2d 203 (1979), a post-conviction case, the presiding judge had departed from applicable procedure and allowed the accused who had not testified to make an unsworn statement to the jury in addition to the argument by counsel for the accused. In rebuttal the prosecutor emphasized to the jury that the defendant's statement was not under oath, was not subject to cross-examination, and had omitted explaining aspects of the evidence against him. To support post-conviction relief Bontempo relied heavily upon Griffin. After reviewing many of the cases cited infra, the New Jersey court summed up by saying that
the rationale underlying the decisions cited compels the conclusion that defendant's testimonial behavior before the jury justified the prosecutor's rebuttal. Where, as here, a defendant's unsworn statements take on a "testimonial" color, the jury might well be misled. The accused thereby "gather[s] an advantage that is false, for less than the whole truth may affirmatively mislead." State v. Fioravanti, [46 N.J. 109, 118, 215 A.2d 16, 21 (1965), cert. denied, 384 U.S. 919, 86 S. Ct. 1365, 16 L. Ed. 2d 440 (1966)]. Thus, a defendant who "undertakes to answer part of the evidence against him [in a testimonial manner] is subject to comment as to factual thrusts he does not meet." Id. at 117, 215 A.2d at 20. Here, the prosecutor's comments constituted proper rebuttal and did not serve to violate defendant's Fifth Amendment rights. [170 N.J. Super. at 244-45, 406 A.2d at 215.]
Subsequently, the United States District Court for the District of New Jersey granted Bontempo the writ of habeas corpus but the Third Circuit reversed. Bontempo v. Fenton, 692 F.2d 954 (1982), cert. denied, 460 U.S. 1055, 103 S. Ct. 1506, 75 L. Ed. 2d 935 (1983). The Third Circuit held:
The circumstances here were unusual. The jury was told that Bontempo's argument could not be considered as evidence and yet he talked about facts which were not in the record. The prosecutor's comments about those unsworn accounts and about Bontempo's failure to mention other relevant events was fair reply to the unorthodox closing argument. The jury's attention had been focused on the facts mentioned in the closing argument, despite the instruction that they were not evidentiary. The prosecutor was not prohibited from recognizing the reality of the situation and answering Bontempo's narrative. We are not persuaded that in so doing the prosecution did comment on Bontempo's failure to testify. Consequently, Griffin is not applicable. [Id. at 959.]
The problem under consideration has also arisen at trials on guilt or innocence where the accused, appearing pro se, gives unsworn testimony, not subject to cross-examination, in the course of purportedly questioning witnesses or purportedly arguing from the record. For example, in United States ex rel. Miller v. Follette, 278 F. Supp. 1003 (E.D.N.Y. 1968), the petitioner for a writ of habeas corpus complained that at his trial, in which the petitioner had acted as his own attorney, the prosecutor had told the jury in summation that he could not comment upon the accused's failure to take the stand but that the jury should listen closely to the court's charge as to what constituted evidence. Using both a waiver and a harmless error analysis, the petitioned court rejected the contention that petitioner's Fifth Amendment rights as defined in Griffin had been violated. It said:
The law is presented with a dilemma. On the one hand, permitting defendant to defend himself without benefit of a lawyer's skills and objectivity may lead him to make statements which can be construed as a total waiver of his privilege against self-incrimination, exposing him to being called by the state. On the other, were defendant allowed to give, what is for all practical purposes, testimony without being subject to some check, the jury might be misled. Faced with such undesirable alternatives, the law seeks a middle ground which accommodates the essence of the opposing interests while furnishing maximum protection to all concerned.
Treating the unsworn testimonial statement of the defendant as a partial waiver of the third aspect of the privilege against self-incrimination [i.e., freedom from adverse comment] provides a practical solution. The prosecution can then be permitted to comment that the defendant's statements were not given under oath while he was subject to cross-examination and that they are, therefore, less weighty than sworn testimony. The constitutional privilege of the criminal defendant appearing pro se would appear to be adequately protected were he given a clear and direct warning by the court that such limited comment might follow if he continued to give what amounted to unsworn testimony. [Id. at 1007.]
The Second Circuit affirmed on the harmless error ground, 397 F.2d 363 (1968), and certiorari was denied, 393 U.S. 1039, 89 S. Ct. 660, 21 L. Ed. 2d 585 (1969).
In that appeal the prisoner, Miller, relied upon an earlier, two-one decision of the Second Circuit in United States v. Curtiss, 330 F.2d 278 (1964). Curtiss held that the unsworn and outside-of-the-record excuses given by a pro se defendant for his income tax deficiencies did not constitute a waiver of Fifth Amendment protection and that the prosecutor had violated that protection by arguing that government witnesses had been sworn "`but the defendant stood down here and he asked a lot of questions.'" Id. at 281 (emphasis omitted). Dissenting in Curtiss, Judge Medina observed:
We have come to a pretty pass if, acting as his own lawyer, a defendant in a criminal case can go ahead and say as a lawyer the things he could have testified to in his own defense, and then accuse the prosecutor of violating his Fifth Amendment rights when the prosecutor tells the jury not to believe him, but rather to render their verdict on the testimony given under oath by the witnesses who did testify. [Id. at 287.]
When Miller v. Follette reached the Second Circuit that court emphasized that Miller himself had referred to his failure to take the stand so that, "[u]nder those circumstances, to regard the prosecutor's restrained remark as an error of constitutional proportions would glorify technicality." 397 F.2d at 367. Absent Miller's own reference, the Second Circuit recognized that it "would be faced with the question of whether Curtiss should be reconsidered." Id.[9]
Curtiss represents what is definitely the minority position. Most courts which have considered the question hold that the Fifth Amendment does not prohibit comment by a prosecutor on unsworn statements of fact made by a pro se defendant. See United States v. Lacob, 416 F.2d 756 (7th Cir.1969), cert. denied, 396 U.S. 1059, 90 S. Ct. 755, 24 L. Ed. 2d 754 (1970); Redfield v. United States, 315 F.2d 76 (9th Cir.1963); Smith v. United States, 234 F.2d 385 (5th Cir.1956); State v. Schultz, 46 N.J. 254, 216 A.2d 372, cert. denied, 384 U.S. 918, 86 S. Ct. 1367, 16 L. Ed. 2d 439 (1966);[10]State v. Polk, 5 Or. App. 605, 485 P.2d 1241 (1971); State v. Johnson, 121 Wis. 2d 237, 358 N.W.2d 824 (1984) (no violation by comment that pro se defendant's opening statement was not followed up with proof). And see Note, Criminal Law Privilege Against Self-Incrimination Comment on Failure of Accused Appearing Pro Se to Testify, 38 Temple L.Q. 102 (1964).
We hold that the State's argument did not violate Booth's Fifth Amendment rights.
The third aspect presented here of the right to remain silent is Booth's claim that the trial court erred in rejecting his proposed instruction No. 17. It read in relevant part:
Every citizen charged with a crime has the right to remain silent at trial, including the sentencing hearing. This is because it is the prosecutor's responsibility at a sentencing to prove the citizen guilty of an aggravating circumstance beyond a reasonable doubt.... Mr. Booth did not testify in this phase, as was his right. You shall not draw any inference of guilt from this choice. You shall not allow this choice to prejudice him in any way.
If you use his choice not to testify in any manner, you will have violated your oath that you have taken as jurors.
The trial judge had advised counsel that the above instruction, as well as two others requested by Booth, would not be given. In charging the jury the trial judge did not comment at all on the effect, if any, upon the jury's deliberations of Booth's having allocuted but not testified. Defense counsel's sole exception to the charge was based on the court's "failure to give our requested instructions in full, in the way they are written."
Appellant's requested instruction No. 17 "in the way [it was] written" was properly denied. It presupposed that Booth had remained silent when Booth had in fact allocuted.[11] To give the instruction in the form requested would have been confusing and an incorrect statement of law under the circumstances here. In his allocution Booth denied having murdered Mr. Bronstein. The jury had just found beyond a reasonable doubt that Booth had murdered Mr. Bronstein with premeditation. The jury could properly consider, from the allocution, that Booth had no remorse and thereby reduce the weight to be given to the mitigating factors which the jury had found did exist.
XI
Under the heading of his eleventh submission Booth collects three instances in which he claims there was trial court error in some way associated with claimed improper final argument by the prosecutor at the sentencing proceeding. The permissible scope of closing argument is a matter left to the sound discretion of the trial court. The exercise of that discretion will not constitute reversible error unless clearly abused and prejudicial to the accused. See Thomas v. State, 301 Md. 294, 316, 483 A.2d 6, 17 (1984).
A.
The presentence investigation report, introduced as a joint exhibit at the sentencing hearing, referred to Booth's sentence on May 21, 1972, to three years confinement for assault with intent to maim. That sentence was to be served consecutively to a sentence of four years imposed on May 21, 1971, for robbery. The section on Booth's institutional history explained that "[w]hile incarcerated at the Maryland Correctional Institution, Booth stabbed a fellow inmate, resulting in a consecutive three year sentence for Assault with Intent to Maim imposed on 5/21/72." The presentence report also referred to a November 28, 1978, sentence of five years by the Criminal Court of Baltimore for assault with intent to maim. The employment history section of the report advised that
[b]etween his 9/77 release and his 6/78 arrest for Assault with Intent to Maim, the defendant was employed briefly as a painter for one Robert Shrwer. It was this employer whom the defendant assaulted, reportedly prompted by unpaid wages, which led to Booth's five year sentence on 11/28/78. This information was obtained from Booth's 1978 Admission Summary Institutional file.
In the course of argument the prosecutor said:
Let me explain to you what maim is. It is an ancient crime and the definition of maiming is doing something, hurting somebody in a way in which they would no longer be of service to the king. Maiming means disfiguring somebody, cutting off an ear, gouging out an eye, cutting off a hand. I submit to you, ladies and gentlemen, that short of death, it is the ultimate crime of cruelty.
At that point defense counsel objected, without stating any reasons. The objection was overruled. On this appeal Booth argues that the prosecutor misstated the law and was describing mayhem in his argument.
There was no error. Codified under the "Maiming" subtitle of Md.Code (1957, 1982 Repl.Vol.), Art. 27, "Crimes and Punishment," are §§ 384-386. The convictions of assault with intent to maim referred to in the presentence investigation report were undoubtedly based on violations of § 386 which in relevant part provides that
[i]f any person ... shall assault or beat any person, with intent to maim, disfigure or disable such person ... every such offender ... shall be guilty of a felony....
Section 386, however, does not define "maim." The specific conduct which constitutes the substantive statutory offense of maiming is set forth in § 385 which deals with
the crime of cutting out or disabling the tongue, putting out an eye, slitting the nose, cutting or biting off the nose, ear or lip, or cutting or biting off or disabling any limb or member of any person, of malice aforethought, with intention in so doing to mark or disfigure such person....
An assault with intent to maim is an assault perpetrated with the intent to inflict one or more of the injuries described in § 385. The prosecutor's definition of maiming virtually paralleled the words of the statute. Consequently, if defense counsel's objection was based on a claimed misstatement of law by the prosecutor, there was no error in overruling the objection.
The objection more likely went to the last sentence above quoted from the prosecutor's argument which characterized maiming as the ultimate crime of cruelty, short of death. We see no abuse of discretion. We have said that counsel in argument "may indulge in oratorical conceit or flourish." Wilhelm v. State, 272 Md. 404, 413, 326 A.2d 707, 714 (1974).
B.
As the final witness at the sentencing phase, counsel for Booth called a Roman Catholic priest, Father Thomas Schindler, an associate professor at St. Mary's Seminary in Baltimore where he teaches Christian ethics. The trial judge had conducted a preliminary hearing, outside of the presence of the jury, to determine whether Father Schindler could testify. He was offered as an expert on making ethical judgments. According to Booth's counsel the expert opinion would be offered on "the morality of this situation, the ethics of Mr. Booth and how that should play into an ethical decision-making scheme." The court ruled that Father Schindler "will be permitted to testify within the confines that [defense counsel] has just outlined."
Before the jury Father Schindler testified in substance that moral decisions are made on two fundamental bases, one philosophical and the other religious. The philosophical basis reasons from a criterion of what is right and wrong to an application in a particular situation. The religious basis draws on one's religious background and the commitments of one's particular faith. Based on an interview with Booth, on the presentence investigation, and on Booth's social services record, the witness was of the opinion that, while Booth "knows the golden rule" he "basically makes decisions much as a child would." Father Schindler also told the jury that
we have to take a Christian approach to things. In other words, try to understand from a faith commitment as a Christian what has always been underscored is that in order to have full justice, it is always necessary that justice be tempered by or shot through with love and mercy.
On cross-examination the State developed, inter alia, that the witness had been contacted to testify after the guilty verdict had been rendered and within the preceding week to ten days, and that the interview with Booth had lasted approximately fifty minutes. The witness had never previously testified in a capital case and had never seen the sentencing form. On cross-examination the witness was also asked the following:
Q. Now, Father, when you were contacted, did you know that the defense had asked each [prospective] juror their religion?
A. No. I did not know that.
Q. You didn't?
A. No. I did not.
There was no objection by trial counsel for Booth to the above questions.
In the course of the State's summation at the sentencing stage, the prosecutor reviewed the evidence, or lack thereof, as to each mitigating factor listed in the capital punishment statute. In connection with the eighth, or open-ended, factor he discussed Father Schindler's testimony. During that phase of its argument the State referred to the questions asked jurors on voir dire about their religion and to a Catholic priest's having been "recruited" after the guilty verdict. Appellant argues these comments were an improper attack on defense trial counsel. We find no abuse of discretion. The portion of the argument complained of, in the context of the argument as a whole, is part of an attack on Father Schindler's opinion evidence. Set forth in the margin in its entirety is that portion of the State's argument.[12] It was proper argument.
C.
Booth also complains of the following passage from the State's argument:
If we don't stand together against this crime
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE'S ATTORNEY]: If we don't stand together against this crime that this killer has committed, then as a community and a people, as a civilization, we stand for absolutely nothing because then we are a community that will not protect itself.
Appellant calls this an impermissible "fear tactic" and a suggestion that the jury transfer responsibility for their decision to the community at large. We see it as an argumentative presentation of the deterrence policy in sentencing. There was no abuse of discretion.
XII
At sentencing Booth called as his witness the Chairman of the Maryland Parole Commission, William Kunkel. He was asked when Booth would be eligible for parole if a life sentence were to be imposed for the murder of Mr. Bronstein and if maximum sentences were to be imposed, to be served consecutively, for all other crimes of which Booth stood convicted in the subject case.[13] Mr. Kunkel said that under current law Booth would first become eligible in forty-five years, less diminution by credits, e.g., good behavior. This testimony was elicited without objection by the State.
In the course of cross-examination the following transpired:
Q. Can you explain a few other terms to me? What's the term ["]work release["] mean?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
Q. Are you familiar with the term?
THE COURT: Just tell us what it means.
A. Yes. I'm familiar with the term ["]work release.["]
The State thereafter developed from Mr. Kunkel, without objection, that there is a work release program in the correctional system under which an inmate is allowed to go into the community and work during the hours of employment, returning to the institution when not working. Permission of the Parole Board is not required for work release. Those decisions are made by institutional authorities in the Department of Correction.
Booth argues here that the overruling of his objection was erroneous and requires vacating the death sentence. There was no answer given to the question to which defense counsel objected. The question was reframed. The basis for the objection was not stated but it clearly appears that the prosecutor interpreted the objection as going to the competency of Mr. Kunkel to testify as to the meaning of "work release," when that program is not administered by the Maryland Parole Commission. The trial court, on the other hand, seems to have assumed that defense counsel was concerned that the witness would not recognize the question to be preliminary and might launch into a general discussion. When the witness said he was familiar with the term, Booth made no further objections to any part of the entire line of testimony on cross-examination concerning work release. Absent objection error in the admission of evidence is not preserved for a review as of right.
The testimony from Mr. Kunkel about parole, adduced by appellant on direct, and about work release, adduced by the State on cross, was not relevant and should have been excluded if proper objections had been made. In Poole v. State, 295 Md. 167, 197, 453 A.2d 1218, 1233 (1983), we said that "[a]ny consideration of the possibility of parole as such simply is irrelevant" in a capital sentencing proceeding. The rationale of Poole is applicable to the defense and to the prosecution. We recently so held in Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985). There the defense likewise sought to show how far into the future possible parole would be if a life sentence were imposed. The theory of admissibility was that the proffered evidence was relevant to the statutory mitigating circumstance dealing with the unlikelihood of further criminal activity by the defendant that would constitute a continuing threat to society. We said that the trial judge in Evans was required to exclude the proffered testimony and pointed out "that one might be likely to engage in criminal activity constituting a threat to those around him whether he is confined in a penal institution or is on parole." Id. at 530, 499 A.2d at 1283 (footnote omitted).
In addition to our general duty under § 414(e) in capital cases to consider "any errors properly before [this] Court on appeal," we are also to consider under § 414(e)(1) "[w]hether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor." The State's introduction of evidence about work release was not prejudicial in that it did not render the sentencing proceedings unfair. The message which appellant was trying to give the jury through the direct examination of Mr. Kunkel was that Booth would be in his sixties before he could ever be on the streets again, with the inference that by that time his hostility and viciousness should be burned out. Under Poole and Evans, that evidence was immaterial because persons in the prison community are part of "society" within the meaning of § 413(g)(7). By its cross-examination the State, likewise by eliciting immaterial evidence, sought to correct a possible erroneous impression created by the immaterial testimony on direct, or at least to place that evidence in perspective. The State developed that parole is not the exclusive means by which an inmate can return to the streets so that, by necessary inference, parole does not exclusively control the time of any such return. From the standpoint of substantial fairness, the State's cross-examination was not improper. The technique which the State employed in meeting the improper evidence produced by Booth is generally recognized and is formally known as the doctrine of curative admissibility. The theory underlying that doctrine is explained in 1 J. Wigmore, Evidence in Trials at Common Law, § 15, at 750 (Tiller's rev. ed. 1983).
The danger that the doctrine of curative admissibility is designed to meet is the danger that the jury will draw and use inferences with respect to immaterial matters, not that the jury will rely on unreliable evidence with respect to a material matter. If the latter concern were the true basis for the principle of curative admissibility, there would be no satisfactory reason to permit a counterattack with respect to that material matter by the use of normally inadmissible evidence since, by hypothesis, the rebutting evidence (unless excluded for reasons of social policy) also lacks significant probative value and thus cannot at least not if we believe in the truth-seeking functions of most of the exclusionary rules known as "relevancy rules" rationally be expected to diminish the prejudice inflicted by the other party's incompetent evidence. Seen from this perspective, the requirement that the counterattack use evidence similar to that originally received is probably a rough-and-ready way of assuring that the counterattack addresses the immaterial issues raised by the inadmissible evidence originally submitted. [Footnote omitted.]
See also McCormick on Evidence § 57 (E. Cleary 3d ed. 1984).
There was no reversible error.
XIII
Booth submits that the trial court should have instructed the jury, as Booth requested, that it must find the existence of the mitigating circumstance recognized in § 413(g)(6), namely, that "[t]he act of the defendant was not the sole proximate cause of the victim's death." Because Reid is a principal in the second degree to the murder of Mr. Bronstein, Booth says his act is not the sole proximate cause of that death.
This argument was rejected in Evans, 304 Md. at 534, 499 A.2d at 1285 where we held that in the context of § 413(g)(6) "the General Assembly intended the words `proximate cause' to apply only to direct physical causes of the victim's death, and not to acts of a principal in the second degree or an accessory before the fact which aided or abetted the act directly causing death." See also Huffington v. State, 304 Md. 559, 574-75, 500 A.2d 272, 279-80 (1985).
XIV
The trial court furnished to the jury a verdict sheet in the form set forth in Maryland Rule 4-343(e). It listed the seven "statutory" mitigating factors enumerated in § 413(g)(1)-(7) and set forth the open-ended provision of § 413(g)(8) under which the jury could specifically set forth any other facts which it found to be mitigating circumstances and which we shall call "nonstatutory" mitigating circumstances. Booth had asked the trial judge to use a verdict sheet prepared by the defense which listed, in addition to the seven statutory mitigating circumstances, six specific nonstatutory factors which Booth considered had been raised by the evidence. The defense-proffered verdict sheet also allowed for open-ended findings of other mitigating circumstances. The trial judge did not use the defense form of verdict sheet. Appellant now argues "that the trial judge, by limiting the verdict sheet, deprived Appellant of his constitutional right to have the sentencer make an informed decision on whether the death penalty should be imposed based on the use of all pertinent data before it." (Emphasis in original).
The argument has no merit because the verdict sheet actually used did not limit the jury. The trial judge made this plain in his instructions on nonstatutory mitigating factors. Judge Angeletti told the jury that it could consider under Item 8 in the section devoted to mitigating circumstances on the verdict sheet given to the jury
any fact or facts that the defendant claims or proposes as a mitigating circumstance or any fact or facts that any member of the jury proposes that could be a potential mitigating circumstance.... If all twelve members of the jury unanimously find that any or all of the proposed facts or mitigating circumstances, either proposed by the defendant or by the members of the jury, have been proven by a preponderance of the evidence, you list them under number eight and consider them....
Booth did not have a right to require a written submission on the verdict sheet of the factors which he claimed existed and operated in mitigation. Indeed, the jury obviously understood that it was not limited to considering whether the statutory mitigating circumstances existed because the jury found nonstatutory mitigating circumstances, i.e., "A. Family Environment," which was particularized as "1. Child Neglect" and "2. Lack of Strong Father Image."
We note that MD.R. 4-343(e) provides that "[t]he findings and determinations shall be made in writing in the following form," but we need not decide in the instant case whether the rule prohibits listing proposed nonstatutory factors for the jury's consideration. In any capital murder case a jury is to consider whether the statutory mitigating factors exist, and if one is found to exist, it is a mitigating circumstance as a matter of law. With respect to nonstatutory factors the jury must find both that the circumstance exists and that it is mitigating. See Foster, 304 Md. at 482, 499 A.2d at 1258. In Foster the trial court had included proposed nonstatutory factors on the verdict sheet for the jury's consideration and had correctly instructed the jury on the difference between statutory and nonstatutory factors. A danger which we foresee in attempting to list possible mitigating factors is that a trial court could be drawn into ruling that there is no basis for submitting a proposed factor and the court may thereby generate a meritorious issue as to whether the jury had indeed been improperly limited.
XV, XVI and XVII
The three issues now under consideration all relate to the victim impact statement introduced as joint exhibit two at the sentencing hearing. Md.Code (1957, 1982 Repl.Vol., 1985 Cum.Supp.), Art. 41, § 124 requires in certain cases, including capital cases, the preparation and consideration of victim impact statements.
The statute was amended by Acts of 1983, Chs. 297 and 345, effective July 1, 1983. Because the subject murders were committed before July 1, 1983, Booth contends that application of the amended victim impact statement statute to him is a prohibited ex post facto application. This argument was rejected in Grandison v. State, 305 Md. 685, 506 A.2d 580 (1986). And see Dobbert v. Florida, 432 U.S. 282, 293, 97 S. Ct. 2290, 2298, 53 L. Ed. 2d 344, 356 (1977).
Appellant also submits that Art. 41, § 124 is unconstitutional and that the introduction of victim impact evidence violates the Eighth and Fourteenth Amendments. The argument common to both of these submissions is that victim impact evidence injects an arbitrary factor into a capital sentencing proceeding. We considered and rejected this argument in Lodowski v. State, 302 Md. 691, 735-42, 490 A.2d 1228, 1251-54 (1985), vacated on other grounds, ___ U.S. ___, 106 S. Ct. 1452, 89 L. Ed. 2d 711 (1986). The analysis in Lodowski was "considered" dicta, intended for the guidance of trial courts and the bar. We apply that analysis in support of our holding here.
Booth further argues that the Lodowski analysis rested the relevancy of victim impact information to capital sentencing exclusively on the legislative determination implicit in enacting the statute and that Lodowski failed to consider what Booth calls the constitutional aspects. Certainly a primary purpose of the General Assembly in enacting a requirement for victim impact information was to insure that some consideration would be given to the victims of certain types of crimes when the perpetrator was sentenced, lest the emphasis on the perpetrator as an individual be so great as to exclude consideration of the victim. In capital cases the victims include survivors of the murdered individual.
There is no per se constitutional defect in using a victim impact statement at a capital sentencing proceeding. The sentencing authority is not constitutionally restricted to considering only the operative facts in the commission of the crime, in addition to the circumstances of the perpetrator. This Court, speaking through Judge Cole in Trimble v. State, 300 Md. 387, 425, 478 A.2d 1143, 1155 (1984), explained the purposes behind the death penalty.
"The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.
"In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs." [quoting Gregg v. Georgia, 428 U.S. 153, 183, 96 S. Ct. 2909, 2929-30, 49 L. Ed. 2d 859, 880 (1976) (opinion announcing judgment) (footnotes omitted).]
We have also reviewed the particular victim impact statement submitted in this case. Given the nature of the subject matter, it is a relatively straightforward and factual description of the effects of these murders on members of the Bronstein family. We are satisfied that the sentence of death was not imposed in this case under the influence of passion, prejudice or any other arbitrary factor. § 414(e)(1). There was no error here in the admission of the victim impact statement.
XVIII
Booth has preserved in his eighteenth issue an argument that the Maryland capital sentencing procedure is unconstitutional under the United States Constitution in two respects, mandatoriness and a defendant's burdens. These arguments were rejected as early as Tichnell v. State [Tichnell I], 287 Md. 695, 415 A.2d 830 (1980) and as recently as our opinion explaining the denial of motions for reconsideration in Foster v. State, Evans v. State, and Huffington v. State, 305 Md. 306, 503 A.2d 1326 (1986).
XIX
We find that the sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. § 414(e)(4). Booth killed 78-year-old Irvin Bronstein, while his hands were tied behind his back, by stabbing him in the chest twelve times, for the calculated purpose of preventing him from identifying Booth as a person who had entered the Bronsteins' home and robbed them. Booth murdered Mrs. Bronstein, though not as a principal in the first degree. Booth has been adjudged guilty of another first-degree murder committed approximately one month before the murders of the Bronsteins. That judgment of conviction, while still under review, is presumptively correct. Booth's criminal record also includes the following convictions: escape, 1983; escape, 1980; assault with intent to maim, 1978; assault, 1978; assault, 1975; assault with intent to maim, 1972; robbery, 1970.
Booth's co-perpetrator in the Bronstein murders, Reid, has been sentenced to death as the principal in the first degree of the murder of Mrs. Bronstein. That conviction has been affirmed. The death sentence imposed on Reid is under review but is presumptively correct. See Reid v. State, supra, 305 Md. 9, 501 A.2d 436.
Our comparability review has also included consideration of Lawrence Johnson v. State, 303 Md. 487, 495 A.2d 1 (1985) and Colvin v. State, 299 Md. 88, 472 A.2d 953 (1984), in each of which we affirmed a death sentence imposed for the murder of an elderly person in that person's residence during the course of an entry and robbery.[14]
JUDGMENT AFFIRMED.
ELDRIDGE, Judge, concurring in part and dissenting in part.
The Supreme Court of the United States expressly held in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), that comment by the prosecution on the defendant's refusal to testify is forbidden by the Fifth Amendment. Furthermore, in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the Supreme Court held, under the circumstances, that such comment could not be deemed harmless error.
Departing from the Supreme Court's Griffin holding, the majority today decides that a defendant who declines to be a witness in the sentencing phase of his capital murder trial invites criticism for failing to take the stand merely because he exercises his state law right of allocution. The majority construes the defendant's speech in mitigation of his sentence as a waiver of his Fifth Amendment right not to be a witness, and accordingly allows the prosecution to rebuke the defendant for not taking an oath and submitting to cross examination. I disagree.
In his closing argument to the jury in the sentencing phase of this capital murder trial, the prosecutor said:
"[PROSECUTING ATTORNEY]: There is but one reason John Booth did not take the witness stand and present his story as he told it to you in allocution. I'm not so naive a man to believe Mr. Booth would be so moved by the prospect of an oath that he would not break his oath. But, ladies and gentlemen, he stood here and testified, not under oath, for one reason only, to avoid cross-examination.
"[DEFENSE ATTORNEY]: Objection, your Honor.
"THE COURT: Overruled.
"[PROSECUTING ATTORNEY]: I assure you we had some questions for Mr. Booth. I ask you, don't be conned by this con man, don't be conned by this man who travels with fifteen names, don't be conned by a most accomplished liar."
These statements expressly criticized the defendant for declining to testify under oath and for avoiding cross examination. Such statements should not be included among the responses properly allowed by the majority opinion when a defendant exercises his right to allocute, namely, a rebuttal by record evidence and a reminder that what is said in allocution is not under oath, not subject to cross examination, and not evidence.
Comment on the refusal to testify penalizes the defendant for exercising a constitutional privilege. Griffin v. California, supra, 380 U.S. at 614, 85 S. Ct. at 1232. In fact, long before the Supreme Court's decision in Griffin, this Court flatly held that such comment violated a defendant's rights and was improper. Smith v. State, 169 Md. 474, 476, 182 A. 287 (1936). When a timely objection is made, as it was here, and no curative instruction is given, this kind of comment ordinarily constitutes clear prejudice and requires reversal. Dill v. State, 10 Md. App. 362, 364, 270 A.2d 489 (1970). See also McDonald v. State, 61 Md. App. 461, 476, 487 A.2d 306 (1985).
When a defendant does not take the stand, but nevertheless injects unsupported or disputed factual statements into allocution, jury argument or questions to a witness, some courts have found a limited waiver of the defendant's privilege to avoid adverse comment on his silence. See, e.g., Jones v. State, 381 So. 2d 983 (Miss.), cert. denied, 449 U.S. 1003, 101 S. Ct. 543, 66 L. Ed. 2d 300 (1980); Bontempo v. Fenton, 692 F.2d 954 (3d Cir.1982), cert. denied, 460 U.S. 1055, 103 S. Ct. 1506, 75 L. Ed. 2d 935 (1983); United States ex rel. Miller v. Follette, 278 F. Supp. 1003 (E.D.N.Y.), aff'd 397 F.2d 363 (2d Cir.,1968), cert. denied, 393 U.S. 1039, 89 S. Ct. 660, 21 L. Ed. 2d 585 (1969). The majority relies upon this line of cases. Such reliance, however, is misplaced.
The principal case relied on by the majority is the opinion of the Supreme Court of Mississippi in Jones v. State, supra. In Jones, the defendant declined to testify at the guilt or innocence phase of his trial for murder, but in his argument to the jury at the sentencing phase he made factual allegations unsupported by the record. The Mississippi Court ruled that "the prosecution may comment to the jury that the defendant's statements were not given under oath and that he was not subject to cross-examination about them." 381 So. 2d at 993. In a subsequent case, Williams v. State, 445 So. 2d 798 (Miss. 1984), cert. denied, ___ U.S. ___, 105 S. Ct. 803, 83 L. Ed. 2d 795 (1985), after the defendant, at the sentencing phase of his murder trial, had made an unsworn statement not supported by the record, the prosecution "commented to the jury, in unfavorable terms, about the [defendant's] failure to give his version of the facts while under oath and subject to cross examination." 445 So. 2d at 814. The court noted its limited waiver holding in Jones, supra, and held that the prosecution's comment, along with other errors, required reversal for a new sentencing proceeding. The Mississippi Court thus distinguished comments explaining the nature of allocution from comments criticizing the defendant for not giving testimony.
The same distinction appears in State v. Bontempo, 170 N.J. Super. 220, 406 A.2d 203 (1979), and Bontempo v. Fenton, supra, 692 F.2d 954. Both the state and federal post conviction proceedings in Bontempo determined that the prosecution's comments constituted proper rebuttal to the defendant's statements and did not amount to comments on the defendant's failure to testify. 170 N.J.Super at 244-245; 692 F.2d at 959.
Even when defendants represent themselves and try to evade the hazards of taking the stand by interjecting factual statements into their legal defense, courts will protect the defendants' Fifth Amendment rights and allow the prosecution to comment only "that the defendant's statements were not given under oath while he was subject to cross examination and that they are, therefore, less weighty than sworn testimony." United States ex rel. Miller v. Follette, supra, 278 F. Supp. at 1007. The prosecution or court is allowed to comment on the quality of the statements made, but not to comment on the defendant's decision not to take the stand. State v. Polk, 5 Or. App. 605, 485 P.2d 1241 (1971); State v. Johnson, 121 Wis. 2d 237, 358 N.W.2d 824 (1984). See Redfield v. United States, 315 F.2d 76 (9th Cir.1963); Smith v. United States, 234 F.2d 385 (5th Cir.1956); State v. Schultz, 46 N.J. 254, 216 A.2d 372, cert. denied, 384 U.S. 918, 86 S. Ct. 1367, 16 L. Ed. 2d 439 (1966).
I agree with the majority that the prosecuting attorney in this case was entitled to tell the jury that evidence includes testimony under oath or subject to cross examination, but I cannot agree that the prosecution is permitted to tell the jury that the defendant did not take the witness stand in order to avoid cross examination.
I concur in the judgment insofar as it upholds the guilty verdicts, but I would remand the case for a new capital sentencing proceeding.
COLE, Judge, concurring in part and dissenting in part.
The Court today affirms its dicta in Lodowski v. State, 302 Md. 691, 490 A.2d 1228 (1985) regarding victim impact statements and holds that there is no constitutional defect in the use of this evidence in capital sentencing proceedings. I vehemently disagree, and for the reasons stated in my opinion in Lodowski, I dissent.
Because of the importance of the constitutional issues involved, I shall restate in part what I said in Lodowski to show that the portion of Md.Code (1957, 1982 Repl. Vol., 1985 Cumm.Supp.), Art. 41, § 124(d) authorizing the use of victim impact statements in capital sentencing proceedings is unconstitutional and that the admission of victim impact evidence in this case violated the eighth and fourteenth amendments of the United States Constitution.
I prefaced my opinion in Lodowski with several observations which I shall reiterate. First I do not object to the use of relevant victim impact evidence from the victim in non-capital sentencing proceedings. Such evidence can be valuable in sentencing proceedings, and when "coupled with active victim participation, acts to restore and increase confidence in the criminal justice system." 302 Md. at 754, 490 A.2d at 1260. My objection here is to the use of impact statements from the family of the victim in capital sentencing proceedings. I sympathize with the families of victims of heinous crimes and I realize that these persons suffer immense pain and untold emotional trauma. Nevertheless, "the court's paramount duty is to preserve the integrity and fundamental fairness of the criminal justice system guaranteed to every citizen under our federal and state constitutions." Id.
I
In Lodowski, I reviewed the Supreme Court decisions delineating the constitutional boundaries of capital sentencing procedures. I shall not repeat this analysis here, but I must stress that my discussion in Lodowski makes clear that the eighth and fourteenth amendments require two basic safeguards in capital sentencing proceedings: (1) the death penalty must "not be imposed under sentencing procedures that create[] a substantial risk that it [will] be inflicted in an arbitrary and capricious manner," Gregg v. Georgia, 428 U.S. 153, 188, 96 S. Ct. 2909, 2932, 49 L. Ed. 2d 859, 883 (1976) (Stewart, J., joined by Powell and Stevens, JJ.); and (2) capital sentencing procedures must "guide[] and focus[] the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender." Jurek v. Texas, 428 U.S. 262, 273-74, 96 S. Ct. 2950, 2957, 49 L. Ed. 2d 929, 939 (Stevens, J., joined by Stewart and Powell, JJ.) (emphasis supplied); see also Proffitt v. Florida, 428 U.S. 242, 259, 96 S. Ct. 2960, 2970, 49 L. Ed. 2d 913, 927 (1976) (Powell, J., joined by Stewart and Stevens, JJ.). These principles form the constitutional foundation for modern death penalty statutes, and it is in light of these precepts that the use of victim impact evidence must be examined.
The use of victim impact statements in capital sentencing proceedings in Maryland is authorized by Art. 41, § 124(d), which provides:
(d) In any case which the death penalty is requested under Article 27, § 412, a presentence investigation, including a victim impact statement, shall be completed by the Division of Parole and Probation, and shall be considered by the court or jury before whom the separate sentencing proceeding is conducted under Art. 27, § 413. [Emphasis supplied.]
Section 124(c)(3) describes the victim impact statement itself. It states:
(3) A victim impact statement shall:
(i) Identify the victim of the offense;
(ii) Itemize any economic loss suffered by the victim as a result of the offense;
(iii) Identify any physical injury sufferd by the victim as a result of the offense along with its seriousness and permanence;
(iv) Describe any change in the victim's personal welfare or familial relationships as a result of the offense;
(v) Identify any request for psychological services initiated by the victim or the victim's family as a result of the offense; and
(vi) Contain any other information related to the impact of the offense upon the victim or the victim's family that the court requires.
I believe that the language providing for the use of victim impact statements in capital sentencing proceedings cannot withstand constitutional scrutiny under the eighth and fourteenth amendment principles set forth ante. As I stated in Lodowski,
At a constitutional minimum, evidence introduced at a capital sentencing proceeding must be relevant as to whether the accused's life be taken or spared. The information must be relevant, of course, to avoid the arbitrary and capricious infliction of the death penalty. In light of this standard, several portions of § 124(c)(3) pass muster. For instance, the identity of the victim (e.g., police officer) is often relevant, see § 124(c)(3)(i), as is other information that goes to the character of the defendant and the circumstances of the offense, see § 124(c)(3)(vi).
Other information called for by § 124(c), however, would rarely, if ever, be relevant in a capital sentencing proceeding. In particular, psychological services requested by the victim's family as a result of the offense are irrelevant. See § 124(c)(3)(v). In addition, it is difficult to see the relevance of whether the victim suffered any economic loss as a result of the offense, unless of course the victim was murdered during the course of a robbery or similarly economically-motivated crime. See § 124(c)(3)(ii). Section 124(c)(3)(iii), which deals with the identification of any physical injury suffered by the victim as a result of the crime along with its seriousness and permanence, seems superfluous in a capital case for obvious reasons. Lastly, any changes in the victim's familial relationships as a result of the offense are irrelevant to the sentencing decision. See § 124(c)(3)(iv). Otherwise, a factor in imposing the death penalty would always be whether the victim died leaving a family. Few factors could be as irrelevant and arbitrary as those called for in §§ 124(c)(3)(ii), 124(c)(3)(iii), 124(c)(3)(iv), and 124(c)(3)(v).
302 Md. at 764, n. 6, 490 A.2d 1228, n. 6.
This type of evidence, then, interjects into the capital sentencing proceedings that same uncertainty and subjectivity decried by the Supreme Court in Gregg, Profitt and Jurek. What can be a more arbitrary factor in the decision to sentence a defendant to death than the words of the victim's family, which vary greatly from case to case, depending upon the ability of the family member to express his grief, or even worse depending upon whether the victim has family at all? In more practical terms, a killer of a person with an educated family would be put to death, whereas in a crime of similar circumstances, the killer of a person with an uneducated family or one without a family would be spared. This result cannot be countenanced, if only upon the realization that lives cannot be compared as to their respective worth.
As I see it, the ultimate crime is the taking of a life, and there can be no further measurement as to the value of the life taken. The proper focus in the capital sentencing procedure must be upon the circumstances "of the individual offense and the individual offender," Jurek v. Texas, supra, 428 U.S. at 273-74, 96 S. Ct. at 2957, 49 L.Ed.2d at 939 (Stevens, J., joined by Stewart & Powell, JJ.), and not upon the particular victim's family.
In support of its holding that there is no per se constitutional error in the use of victim impact statements in capital proceedings, the Court quotes the following from Trimble v. State, 300 Md. 387, 425, 478 A.2d 1143, 1155 (1984):
"The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.
"In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs." [Quoting Gregg v. Georgia, 428 U.S. 153, 183, 96 S. Ct. 2909, 2929-30, 49 L. Ed. 2d 859, 880 (1976) (opinion announcing judgment) (footnotes omitted).]
In quoting this passage from Trimble, which is an exact quote from Gregg v. Georgia, the majority fails to note that Gregg also stands for the proposition that society's outrage at criminal acts and its need for retribution must be tempered by objectivity in the determination of whether a person is to be put to death. The Gregg plurality recognized that our moral outrage at offensive conduct may not be vented in an arbitrary and capricious manner. Gregg v. Georgia, supra, 428 U.S. at 188, 96 S. Ct. at 2932, 49 L.Ed. at 883 (Stewart, J., joined by Powell and Stevens, JJ.). Integral to the "legal process" on which our citizens must rely is the guarantee that the process will be fair and that our laws will be applied uniformly. Because victim impact evidence robs a capital sentencing proceeding of fairness and uniformity, its use cannot justifiably be sanctioned.
II
Putting aside the constitutionality of the statute itself, it is clear in this case that the victim impact evidence is unconstitutional. I stated in Lodowski that:
Time and again, the Supreme Court has emphasized that the sentencer's discretion in a capital proceeding must be channeled and guided by clear, specific, and objective standards. See, e.g., Barclay v. Florida, supra, 463 U.S. [939] at 949, 103 S.Ct. [3418] at 3424, 77 L.Ed.2d [1134] at 1144; Godfrey v. Georgia, supra, 446 U.S. [420] at 428, 100 S.Ct. [1759] at 1764-65, 64 L.Ed. [398] at 406; Woodson v. North Carolina, supra, 428 U.S. [280] at 303, 96 S.Ct. [2978] at 2990-91, 49 L.Ed.2d [944] at 960. Evidence that has the effect of arousing the passion and prejudice of the sentencer does not satisfy this constitutional standard. Similarly, evidence irrelevant to the sentencing decision has no place in a capital sentencing proceeding.
302 Md. at 764-65, 490 A.2d at 1265-66. As in Lodowski, a review of the victim impact statement in this case clearly demonstrates these points.
Agent Michelle Swann prepared a victim impact statement through interviews with the victims' son, daughter, son-in-law, and granddaughter. Agent Swann writes of the victims' son that he:
saw his parents alive for the last time on May 18th. They were having their lawn manicured and were excited about the onset of spring. He called them on the phone that evening and received no answer. He had made arrangements to pick Mr. Bronstein up on May 20th. They were both to be ushers in a granddaughter's wedding and were going to pick up their tuxedos. When he arrived at the house on May 20th he noticed that his parents' car wasn't there. A neighbor told him she hadn't seen the car in several days and he knew something was wrong. He went to this [sic] parents' house and found them murdered. He called his sister crying and told her to come right over because something terrible had happened and their parents were both dead.
* * * * * *
The victims' son states that he can only think of his parents in the context of how he found them that day, and he can feel their fear and horror. It was 4:00 p.m. when he discovered their bodies and this stands out in his mind. He is always aware of when 4:00 p.m. comes each day, even when he is not near a clock. He also wakes up at 4:00 a.m. each morning. The victims' son states that he suffers from a lack of sleep. He is unable to drive on the streets that pass near his parents' home. He also avoids driving past his father's favorite restaurant, the supermarket where his parents shopped, etc. He is constantly reminded of his parents. He sees his father coming out of synagogues, sees his parents' car, and feels very sad whenever he sees old people. The victims' son feels that his parents were not killed, but were butchered like animals. He doesn't think anyone should be able to do something like that and get away with it. He is very angry and wishes he could sleep and not feel so depressed all the time. He is fearful for the first time in his life, putting all the lights on and checking the locks frequently. His children are scared for him and concerned for his health. They phone him several times a day. At the same time he takes a fearful approach to the wherea-bouts of his children. He also calls his sister every day. He states that he is frightened by his own reaction of what he would do if someone hurt him or a family member. He doesn't know if he'll ever be the same again.
As with the testimony of Fletcher's widow in Lodowski, the testimony of the Bronsteins' son, however deserving of sympathy,
does not channel and guide the sentencer's discretion in a constitutionally permissible manner. By appealing to the passions and prejudices of the sentencing authority, the above quoted passage[] represent[s] an "arbitrary factor" in the decisional process. In my view, it is arbitrary to base a decision as to whether an accused should live or die on the basis of subjective impressions a [family member] has of the crime.... Predicating the death penalty decision on this type of evidence propels us full force to the pre-Furman era of the arbitrary imposition of capital punishment.
302 Md. at 766, 490 A.2d at 1266.
The portion of the victim impact statement dealing with the impact of the victims' deaths upon their daughter and her husband further demonstrates this conclusion:
The victims' daughter and her husband didn't eat dinner for three days following the discovery of Mr. and Mrs. Bronstein's bodies. They cried together every day for four months and she still cries every day. She states that she doesn't sleep through a single night and thinks a part of her died too when her parents were killed. She reports that she doesn't find much joy in anything and her powers of concentration aren't good. She feels as if her brain is on overload. The victims' daughter relates that she had to clean out her parents' house and it took several weeks. She saw the bloody carpet, knowing that her parents had been there, and she felt like getting down on the rug and holding her mother. She wonders how this could have happened to her family because they're just ordinary people. The victims' daughter reports that she had become noticeably withdrawn and depressed at work and is now making an effort to be more outgoing. She notes that she is so emotionally tired because she doesn't sleep at night, that she has a tendency to fall asleep when she attends social events such as dinner parties or the symphony. The victims' daughter states that wherever she goes she sees and hears her parents. This happens every day. She cannot look at kitchen knives without being reminded of the murders and she is never away from it. She states that she can't watch movies with bodies or stabbings in it. She can't tolerate any reminder of violence. The victims' daughter relates that she used to be very trusting, but is not any longer. When the doorbell rings she tells her husband not to answer it. She is very suspicious of people and was never that way before.
The victims' daughter attended the defendant's trial and that of the co-defendant because she felt someone should be there to represent her parents. She had never been told the exact details of her parents' death and had to listen to the medical examiner's report. After a certain point, her mind blocked out and she stopped hearing. She states that her parents were stabbed repeatedly with viciousness and she could never forgive anyone for killing them that way. She can't believe that anybody could do that to someone. The victims' daughter states that animals wouldn't do this. They didn't have to kill because there was no one to stop them from looting. Her father would have given them anything. The murders show the viciousness of the killer's anger. She doesn't feel that the people who did this could ever be rehabilitated and she doesn't want them to be able to do this again or put another family through this. She feels that the lives of her family members will never be the same again.
As I said in Lodowski, "the punishment of death, unique in its severity and irrevocability, see Gregg v. Georgia, supra, 428 U.S. at 187, 96 S. Ct. at 2931, 49 L.Ed.2d at 882, should not turn upon these considerations." 302 Md. at 767, 490 A.2d at 1267.
Agent Swann also reports the following concerning the victims' grandchildren:
Since the Jewish religion dictates that birth and marriage are more important than death, the granddaughter's wedding had to proceed on May 22nd. She had been looking forward to it eagerly, but it was a sad occasion with people crying. The reception, which normally would have lasted for hours, was very brief. The next day, instead of going on her honeymoon, she attended her grandparents' funerals. The victims' son, who was an usher at the wedding, cannot remember being there or coming and going from his parents' funeral the next day. The victims' granddaughter, on the other hand, vividly remembers every detail of the days following her grandparents' death. Perhaps she described the impact of the tragedy most eloquently when she stated that it was a completely devastating and life altering experience.
* * * * * *
The victims' granddaughter states that unless you experience something like this you can't understand how it feels. You are in a state of shock for several months and then a terrible depression sets in. You are so angry and feel such rage. She states that she only dwells on the image of their death when thinking of her grandparents. For a time she would become hysterical whenever she saw dead animals on the road. She is not able to drive near her grandparents' house and will never be able to go into their neighborhood again. The victims' granddaughter also has a tendency to turn on all the lights in her house. She goes into a panic if her husband is late coming home from work. She used to be an avid reader of murder mysteries, but will never be able to read them again. She has to turn off the radio or T.V. when reports of violence come on because they hit too close to home. When she gets a newspaper she reads the comics and throws the rest away. She states that it is the small everyday things that haunt her constantly and always will. She saw a counselor for several months but stopped because she felt no one could help her.
The victims' granddaughter states that the whole thing has been very hard on her sister too. Her wedding anniversary will always be bittersweet and tainted by the memory of what happened to her grandparents. This year on her anniversary she and her husband quietly went out of town. The victims' granddaughter finds that she is unable to look at her sister's wedding pictures. She also has a picture of her grandparents, but had to put it away because it was too painful to look at it.
Again although deserving of much sympathy, the effect of the victims' death upon their grandchildren is irrelevant to the sentencing process and serves only to arouse the passion and prejudice of the sentencer.
III
In its closing argument, the State referred to the victim impact statement and argued as follows:
Ladies and gentlemen, if they prove the one mitigating circumstance or if they prove two or ten or a hundred or two hundred or a thousand, nothing whatsoever about this man, about his background, about his feelings, about his emotions, about his moral capacity, could ever, in any way, outweigh the importance of what he did that day in May last year.... If you get to section three and you have to balance it, take this presentence report and read out loud what is entitled the victim impact statement. For ladies and gentlemen that is the ultimate dimension of the crime he has committed. ... [Emphasis supplied.]
As I noted in Lodowski, however, the procedure for the determination of whether the defendant must be put to death under § 413 does not include the victim impact statement as one of the aggravating circumstances to be weighed against the mitigating circumstances:
Of the ten aggravating circumstances listed in § 413(d), none specifically provides for consideration of victim impact evidence. Moreover, § 413(d) does not contain a "catch-all" similar to that set forth in the mitigating circumstances subsection (§ 413(g)) that would permit the sentencing authority to consider victim impact evidence. In the case sub judice, the sentencer did not consider the victim impact evidence as a mitigating circumstance. For obvious reasons, victim impact evidence would rarely, if ever, be considered as a mitigating circumstance. Thus, the sentencer necessarily must have considered that evidence as an aggravating circumstance without entering it into the formal statutory weighing process. Nowhere does § 413 permit the sentencing authority to weigh the mitigating and aggravating circumstances, then the victim impact evidence, at the time of sentencing. The imposition of the death penalty in this case therefore did not comport with the sentencing procedures contained in § 413.
302 Md. at 785-86, 430 A.2d at 1276.
Impact evidence from the victim's family has but one purpose: "to exacerbate the aggravating circumstances established by the prosecution." Id. at 786, 490 A.2d at 1276. This type of evidence, however, has no place in a statutory weighing process which owes its very existence to the constitutional mandate that the death penalty must not be administered in an arbitrary or capricious manner.
In my view, victim impact evidence as was introduced in Booth's death sentencing is constitutionally impermissible. While I concur in the judgment insofar as it upholds the guilty verdicts, I would vacate the sentence and remand for another sentencing proceeding which does not include such evidence.
McAuliffe, Judge, concurring in part and dissenting in part.
I concur in the affirmance of the conviction, but dissent from the decision to affirm the sentence of death.
For the reasons stated in the concurring and dissenting opinion in Evans v. State, 304 Md. 487, 539-40, 499 A.2d 1261 (1985), I believe the Maryland death penalty statute is in part unconstitutional. I agree with the contention made by Booth in his eighteenth argument that our statute impermissibly places the burden on the defendant to prove that mitigating circumstances outweigh aggravating circumstances in order to avoid the penalty of death.
Unfortunately, the erroneous allocation of the burden of persuasion that originated in the statute was perpetuated in the instructions given to this jury. Although the trial judge stated he was granting Booth's proposed instruction number 9, which correctly assigned to the State the burden of establishing that the aggravating circumstances outweighed the mitigating circumstances in order to justify a sentence of death, he did not give that instruction.[1] Rather, he instructed the jury in the language of the statute and of the Findings and Sentencing Determination Form, and therefore effectively conveyed to the jury the erroneous message that in order to avoid a sentence of death the burden rested upon the defendant to prove by a preponderance of the evidence that the mitigating circumstances outweighed the aggravating circumstances.
I would vacate the sentence and remand for a new sentencing proceeding.
NOTES
[1] Willie Reid was the principal in the first degree to the murder of Mrs. Bronstein for which Reid was sentenced to death. In Reid's case we have affirmed the judgments of conviction and ordered further proceedings with respect to the death sentence, without affirmance or reversal of the death sentence. See Reid v. State, 305 Md. 9, 501 A.2d 436 (1985).
[2] Booth and Jewell Edwards were married June 2, 1983, five days before Booth was arrested.
[3] The nearest antecedent to the italicized "he" indicates it refers to Reid.
[4] Recently, in Ferrell v. State, 304 Md. 679, 684, 500 A.2d 1050, 1052-53 (1985), we repeated the definition of premeditation drawn from Chisley v. State, 202 Md. 87, 106, 95 A.2d 577, 585-86 (1953) as "some appreciable period of time during which [the accused], after having formed `a specific purpose and design to kill' had `full and conscious knowledge of the purpose to do so.'"
[5] The relevant portion of the State's argument reads:
[N]othing that John Booth said to you this morning is evidence.
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Overruled.
[STATE'S ATTORNEY]: Remember what the Judge told you, I believe in his very first statement to you, evidence is three things. It is stipulations, that which counsel agrees to be fact, it is documents or pictures or actual objects placed into evidence and it is testimony under oath subject to cross-examination from the witness chair. What you heard this morning was John Booth in his right of allocution. Something different than testimony. For the law provides that any man before he is sentenced can say anything that is on his mind. But anything that is on his mind is not an elevated level of evidence.
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Overruled.
[STATE'S ATTORNEY]: There is but one reason John Booth did not take the witness stand and present his story as he told it to you in allocution. I'm not so naive a man to believe Mr. Booth would be so moved by the prospect of an oath that he would not break his oath. But, ladies and gentlemen, he stood here and testified, not under oath, for one reason only, to avoid cross-examination.
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Overruled.
[STATE'S ATTORNEY]: I assure you we had some questions for Mr. Booth. I ask you, don't be conned by this con man, don't be conned by this man who travels with fifteen names, don't be conned by a most accomplished liar.
But, even though, we had no cross-examination, even though we couldn't ask the man one question
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE'S ATTORNEY]: the lies shined through his statement. He just wasn't, for all his talents, a con man. He just wasn't that good a liar. Do you realize what he has actually said to you?
The prosecutor then argued from the content of Booth's statement that Booth had contradicted himself on each of two aspects of the allocution. Continuing, counsel for the State said:
Ladies and gentlemen, he could have said anything that he wanted when he stood here before you. Anything. The one thing he did not say is this, I am sorry for what I have done. For I submit, he is not and in the final analysis, with his life on the line, not subject to cross-examination
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Overruled.
[STATE'S ATTORNEY]: He has attempted once again to lie his way out of his problems. Please, please do not be so naive as to let him do that.
[6] All statutory references, unless otherwise noted, will be to Art. 27.
[7] Article 22 of the Maryland Declaration of Rights provides "[t]hat no man ought to be compelled to give evidence against himself in a criminal case."
Md.Code (1974, 1984 Repl.Vol.), § 9-107 of the Courts and Judicial Proceedings Article provides:
A person may not be compelled to testify in violation of his privilege against self-incrimination. The failure of a defendant to testify in a criminal proceeding on this basis does not create any presumption against him.
[8] The judgment of the Supreme Court of Ohio was vacated insofar as it left the death penalty undisturbed. The case was remanded for further proceedings in light of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
[9] In United States v. Kaufman, 429 F.2d 240, 246 (1970), the Second Circuit said in dictum that to the extent that some of the pro se defendant's statements "might be construed as testimony he may have waived his right to refuse to testify."
[10] This case was on direct appeal when Griffin v. California was decided in 1965.
[11] Booth relies heavily on People v. Ramirez, 98 Ill. 2d 439, 75 Ill. Dec. 241, 457 N.E.2d 31 (1983) which held that one who had been found guilty of capital murder was entitled to a Carter v. Kentucky instruction at the life or death sentencing hearing. In that case, however, the defendant had remained silent at the sentencing hearing.
[12] The only evidence that you heard of what would really be considered a mitigating circumstance is the testimony of Father Schindler. Ladies and gentlemen, I think that it was embarrassing enough that we had this rank attack on your sentimentality
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE'S ATTORNEY]: By the defendant's grandmother. But particularly as a Catholic, I am horribly offended by the testimony
[DEFENSE COUNSEL]: Objection.
[STATE'S ATTORNEY]: of Father Schindler.
THE COURT: Sustain the objection as to counsel's personal feelings.
[STATE'S ATTORNEY]: Ladies and gentlemen, my personal feelings have nothing to do with this. But realize each one of you, as all of the other hundred or so jurors who were considered for this case, was asked a question by the defense attorneys, what is your religion and how serious are your religious convictions.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE'S ATTORNEY]: Then after the defendant is convicted, a Catholic priest is gone out and recruited.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE'S ATTORNEY]: When? When? Last Thursday. He met this man for the first time and spent fifty minutes with him. Now he is capable of coming into this court and telling you how you are to ethically go about making the decision before you
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE'S ATTORNEY]: How you are going to go about it ethically. The law provides a step-by-step method for you to get where you are supposed to go.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE'S ATTORNEY]: What does he tell us? He tells us really three things. First he tells us that from an ethical point of view, it is in some instances proper to take life. I think we all can understand that. He tells us that the death penalty should be a penalty of last resort. We didn't need an expert to tell us that because each one of us knew that. But what is it that he is selling here in this courtroom? He is selling, that is, his expert analysis indicates that this defendant, when he went into the Bronstein home was suffering from an underdeveloped conscience, an underdeveloped moral ethical capacity. Ladies and gentlemen, that is ridiculousness.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE'S ATTORNEY]: That, ladies and gentlemen, is absurd. Certainly, some people may be more moral than others. I guess it's true. I guess he's [Booth's] a classic example of what he studies all the time. It is impossible for an adult human being, capable of speaking intelligently as you saw John Booth, it is impossible for him not to fully appreciate that it is wrong
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE'S ATTORNEY]: to recruit one of your buddies, one of your dope-addicted buddies to go down and break into your neighbor's home, old people, vulnerable people, available people, to overpower them, to tie them up, to gag them, to put a hood over Mr. Bronstein's head and then to take a knife and stab and stab and stab and stab until the knife bends, and a Catholic priest will come in here and say the defendant has an underdeveloped sense of moral capacity that should mitigate his involvement in this crime. It is ridiculous.
[13] The jury was not told that in another case Booth stood convicted of another murder and robbery, committed on Easter Sunday, April 4, 1983. For those crimes Booth had been sentenced to life plus twenty years. Those convictions were on appeal to the Court of Special Appeals at the time of the trial court proceedings in the instant matter. See Booth v. State, 62 Md. App. 26, 488 A.2d 195, cert. granted, 303 Md. 297, 493 A.2d 351 (1985).
[14] The foregoing opinion does not discuss the jury instructions with respect to the point advanced by Judge McAuliffe in his dissent because no such claim of error in the instructions was raised by Booth in brief or argument on appeal. Even if the point were properly before us, there was no trial court error in the instructions.
What transpired is that one of Booth's proposed instructions dealt with the weighing of mitigating and aggravating circumstances. The last sentence of the three sentence proposed instruction read: "If a comparison of the totality of the aggravating factors with a totality of the mitigating factors leaves you in doubt as to the proper penalty you must impose life imprisonment." The instruction as given reads in relevant part:
Let's go to section three on page five [of the special verdict form]. Now section three says as follows: Based on the evidence, we unanimously find that it has been proven by a preponderance of the evidence that the mitigating circumstances marked yes in section two outweigh the aggravating circumstances marked yes in section one. There is a place for you to indicate yes or no and let me again stress the requirement of unanimity. That is, the finding under circumstance three must be the finding of all twelve jurors. With respect to section three, in balancing the various factors, you are not involved in a mere counting process. It is a weighing process and you may find that a single mitigating circumstance is sufficient in weight to justify a life sentence even if you find more than one aggravating circumstance. Conversely, you may conclude that a single aggravating circumstance, once weighed against the mitigating circumstances, is sufficient to justify a sentence of death. The number of aggravating and mitigating circumstances you find is not determinative in this balancing process. Rather you should decide what weight and quality each factor deserves and by your reasonable judgment in balancing the aggravating and mitigating circumstances, which you find to have been proven[,] you will determine whether the sentence will be life imprisonment or imposition of death. If you find that the mitigating circumstances do not outweigh the aggravating circumstances, the sentence shall be death. If you find that the mitigating circumstances outweigh the aggravating circumstances, the sentence shall be imprisonment for life.
The sole defense exception to the instructions claimed a "failure to give our requested instructions in full, in the way they are written."
The Court in a criminal cause "need not grant a requested instruction if the matter is fairly covered by instructions actually given." MD.R. 4-325(c). Nor may a party assign as error "the failure to give an instruction unless the party objects ... stating distinctly the matter to which the party objects and the grounds of the objection." MD.R. 4-325(e). This exception is inadequate to call to the trial judge's attention a claimed defect by way of the absence of an instruction on ultimate burden of proof so that the issue was not preserved in the trial court for direct review. Further, the issue was waived on appeal by the omission from appellant's brief of any claim of error in omitting an express instruction covering an even balance result in the weighing process.
Nor is the absence of an equipoise instruction "plain error in the instructions, material to the rights of the defendant, despite a failure to object," of which we might take cognizance under MD.R. 4-325(e). The instruction as given tracked the statute. In Foster v. State, 304 Md. 439, 477-78, 499 A.2d 1236, 1256 (1985), we explained that the statute does not contain a clear inference regarding the allocation of the burden of proof or risk of nonpersuasion absent an additional provision specifying the result if the sentencing authority found that mitigating and aggravating circumstances were in a state of even balance or if the sentencing authority was unable to determine which outweighed the other. Consequently, in Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980), this Court interpreted the statute to place the burden of persuasion upon the prosecution with regard to the weighing of aggravating and mitigating circumstances. Because the statute does not place the burden of persuasion with regard to the weighing process on the accused, the instructions in the instant case which tracked the statute did not place the burden on the accused.
By this analysis we do not indicate any opinion on the constitutionality of a statute imposing such a "burden" on a capital defendant.
[1] The majority opinion sets forth, in footnote 14, only the concluding sentence of Booth's proposed Instruction No. 9. I believe it is helpful to view the proposed instruction in its entirety:
Your next duty will be to weigh any mitigating circumstances which exists (sic) against any aggravating circumstances which exist.
Because the State is attempting to establish that death is the appropriate punishment, the State bears the burden of establishing that the aggravating circumstances which you find outweigh the mitigating circumstances. Unless you find, after considering the totality of the aggravating and mitigating circumstances, that the aggravating factors, discounted by whatever mitigating circumstances exist, are sufficiently serious to require the sentence of death, you must impose life imprisonment. If a comparison of the totality of the aggravating factors with a totality of the mitigating factors leaves you in doubt as to the proper penalty you must impose life imprisonment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1411376/ | 201 Kan. 177 (1968)
440 P.2d 562
THE STATE OF KANSAS, Appellee,
v.
GERALD LEE, a/k/a GERALD EL, Appellant.
No. 44,679
Supreme Court of Kansas.
Opinion filed May 11, 1968.
John J. Jurcyk, Jr., of Kansas City, argued the cause and was on the brief for the appellant.
Robert L. Serra, assistant county attorney, argued the cause, and Robert C. Londerholm, attorney general, and Frank D. Menghini, county attorney, were with him on the brief for the appellee.
The opinion of the court was delivered by
HARMAN C.:
Appellant, Gerald Lee, also known as Gerald El, was convicted by a jury of the offenses of burglary in the second degree, larceny of a television set in connection with the burglary and of larceny of an automobile. Having a previous felony conviction, he was sentenced to double the statutory penalty for each of the offenses, and he has appealed.
Appellant first complains of an adverse pretrial ruling. After a preliminary examination in magistrate court binding him over for trial in the district court, he filed, in the latter court, his pro se application for writ of habeas corpus. He stated the evidence offered at preliminary examination was insufficient to hold him for trial; that he was wrongfully held because one Vernon Towner, with whom appellant was jointly charged in the commission of the three offenses, was in jail at the time the preliminary examination was held and Towner's testimony would have absolved appellant of any wrongdoing. The trial court denied appellant's application.
There is no indication appellant was improperly detained for trial for want of evidence. Other than his bare conclusion of insufficiency, he made no showing of any kind before the trial court which would *178 have warranted the court in acting favorably to him at that stage of the proceeding, and no prejudice is shown or could possibly have resulted from the ruling made. (See State v. Bloomer, 197 Kan. 668, 421 P.2d 58, cert. den. 387 U.S. 911, 18 L.ed.2d 631, 87 S. Ct. 1697.)
It appears Vernon Towner had been tried and convicted of the same offenses prior to the commencement of appellant's trial. In appellant's trial, at the conclusion of the state's evidence appellant, again acting pro se, requested that the record of Towner's trial be "brought into this trial to prove and to show to the Court, my innocence." The appellant further stated: "... the reason I requested the records is that I would like to show the Court, as I said, for his [Towner's] record would show that I haven't any knowledge of this particular crime."
The following colloquy then occurred:
"THE COURT: Of course, the other defendant being here, I can't see any reason for the testimony of the first trial being read to the jury, unless there is some material variance of what some previous witness had testified to. We will go into the testimony of Towner, and if I think any part of the record should be brought in, I will bring it in at that time.
"THE DEFENDANT: May I state in the record, that the record of his trial is the main facts; all the facts in his trial would be relating to my innocence of this case; every fact, and Mr. Towner's records.
"THE COURT: The way this can be brought about, if it is true, that Towner can be asked concerning certain testimony.
"THE DEFENDANT: That's right.
"THE COURT: And I will have the Reporter read it."
Appellant did in fact call Towner as his witness. Towner testified the crimes were committed by a person he knew only by the name of "St. Louis," his testimony thus absolving appellant of criminal participation.
When the matter of reading Towner's trial transcript first came up it appears that all appellant desired was to have Towner testify in his behalf. The jury's disbelief of this testimony is apparent from its guilty verdict against appellant.
In an effort to upset that verdict appellant now contends he should have been allowed to read the entire transcript of Towner's trial. He asserts the testimony of certain of the state's witnesses was different at Towner's trial from their testimony at his trial but he fails to point out in what respect. The record reveals no attempt to cross-examine appellee's witnesses as to any discrepancy in testimony and appellee states in its brief no such attempt was made. *179 At trial appellant made no further request of the trial court other than that already recited, he made no offer of proof as to what he expected to show, and in fact it does not even appear the trial court made any specific exclusionary ruling against appellant. Assuming the record could be construed as denying appellant the use of Towner's transcript, and further that such denial constituted error, appellant does not point out to us now how he has been prejudiced in any way because the transcript was not read and we find no basis for presuming prejudice. One seeking reversal of a judgment because of erroneous exclusion of evidence has the burden of demonstrating prejudice, as well as error, in the ruling complained of.
Appellant was apprehended by two police officers soon after the commission of the alleged burglary. He was very belligerent, yelled loudly and eventually grabbed an officer during the arresting process. One of the arresting officers, in describing a part of appellant's efforts to resist, testified as follows:
"Well, Mr. Lee, as I said, was very belligerent; we had to subdue him in order to make a proper arrest; Mr. Lee informed us he was going to have our jobs, as he was a member of the Black Muslims, and his people would not let us put him under arrest, and he demanded to leave the scene, and kept informing us that we were all going to lose our jobs."
No objection was made to this testimony at the time it was given. Later appellant moved for a mistrial upon the ground the testimony was prejudicial. This motion was denied. In closing argument to the jury, appellee's attorney made the following statement:
"... they got out, and tried to arrest the man, and he gave them some trouble, you heard the testimony that he was not amenable to the Laws of this country, they couldn't arrest him."
No objection was made to this statement.
Appellant contends the foregoing testimony and the reference to it in argument unnecessarily inflamed the jury because appellant's unpopular religious beliefs were thereby injected in the case.
We would condemn any effort on the part of the prosecution reasonably calculated to appeal to or evoke religious or racial prejudice. However, we cannot ascribe any such attempt here. Rather, the testimony seems directed to relevant matter appellant's efforts in a pattern of flight to escape apprehension immediately after commission of the crimes. The arrest of an accused and the attending circumstances are admissible against him where they tend logically to connect him with the perpetration of the offense. Generally, evidence that the accused resisted arrest, and of the circumstances *180 of the resistance, is relevant as tending to show guilt or consciousness of guilt (see 22A C.J.S., Criminal Law, § 628). In State v. Williams, 196 Kan. 628, 413 P.2d 1006, this court stated:
"The demeanor of one charged with crime, at or near the time of its commission, or of his arrest for such crime, may always be shown by evidence and presented to the jury upon the trial of the criminal action." (Syl. ¶ 3.)
Here reference to religion was brought into the case only by reason of appellant's own statement made under incriminating circumstances. The prosecution did not unjustifiably emphasize or dwell upon the religious aspect, and appellant is in no position to complain of any incidental effect.
Appellant's contention the jury's verdict was contrary to the weight of the evidence requires brief summation thereof: On November 7, 1965, at about 3:00 a.m. two Kansas City, Kansas, police officers were driving east on Minnesota avenue in downtown Kansas City. As they approached Ninth and Minnesota they saw a man (identified later as appellant) taking something from a finance company located at 851 Minnesota. The man ran from the building to a white Oldsmobile sedan, which automobile started east on Minnesota at fast speed. The police car, with siren on, followed and a chase ensued covering several city blocks. The pursuing officers never lost sight of the Oldsmobile which at Eighth and Orville streets failed to negotiate a turn and stopped in the yard of a private residence. The man behind the wheel of the wrecked automobile was Vernon Towner. There was an overhead light at the accident scene. Appellant got out of the vehicle and looked into the beam of the police car headlights about fifteen feet away, enabling the officers to see him. He ignored a call to halt and fled into the darkness.
A description of appellant and his clothing was immediately broadcast over police radio and two other police officers soon arrested him after seeing him running nearby.
The Oldsmobile automobile had been taken without permission from the owner's home earlier that night. A portable television set identified as one belonging to the finance company was found on the passenger side of the automobile. It had been left the night before in the front window of the building. The plate glass window had been broken and a concrete block was found inside the window.
We need not labor sufficiency of the evidence every element of the crimes charged was shown and appellant was positively identified *181 by eyewitness testimony as the culprit. The jury's verdict was amply supported by sufficient proof.
Appellant complains the jury's verdict was rendered after deliberating only forty-nine minutes. Once trial errors are disposed of and the evidence recited, further comment is hardly warranted. It is common knowledge among bench and bar that juries have reached unimpeachable verdicts within less time.
The foregoing matters comprised appellant's motion for new trial; that motion was properly overruled and the judgment and sentence are affirmed.
APPROVED BY THE COURT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582277/ | 415 Mich. 615 (1982)
329 N.W.2d 743
PEOPLE
v.
GONZALES
Docket No. 67765, (Calendar No. 3).
Supreme Court of Michigan.
Argued June 8, 1982.
Decided December 23, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Geoffrey H. Nickol, Assistant Prosecuting Attorney, for the people.
*617 Curtis G. Rundell, II, P.C., for the defendant.
Amicus Curiae:
Terence R. Flanagan for the State Appellate Defender and The Criminal Defense Attorneys of Michigan.
KAVANAGH, J.
Defendant Salvadore Gonzales and John Duncan Wallach were charged with the first-degree murder of Elmer Evans.[1] Gonzales and Wallach were tried separately. Following a jury trial defendant was found guilty as charged and sentenced to a mandatory term of life imprisonment. The Court of Appeals reversed his conviction, holding that the trial court erred in admitting the testimony of a witness whose memory had been hypnotically refreshed.[2] We affirm the opinion of the Court of Appeals for the reasons stated therein and for the additional reasons set forth below.
I
The case against defendant was based almost solely on the testimony of Rhonna Burns, summarized by the Court of Appeals:
"According to the testimony of Burns, on Saturday night, January 27, 1979, she was at the Liberty Bar with John Wallach. Late that evening Wallach introduced her to defendant. Wallach then went over to Elmer Evans while Burns and defendant conversed. After talking to Evans, Wallach came back to the booth where Burns and defendant were. He said that Evans needed a ride home. Defendant then went over to Evans who gave defendant his car keys. Defendant then left *618 by way of the front door apparently to go to Evans' which Evans had said was parked in front of the bar. Wallach, Burns, and Evans exited through the back door of the bar and went to Wallach's station wagon. The trio drove to a warehouse. Defendant was waiting there, standing in front of a small blue car. Defendant got into the back seat of the station wagon and sat next to Evans. They then drove to a house on a hill and stopped in front of a garage. Stating that he had to go to the bathroom, defendant got out and went out around the garage toward the right. Wallach and Evans then got out of the car and went toward the left, out of Burns' view. After approximately 10 or 20 minutes, defendant returned. Wallach returned immediately thereafter. Evans, however, did not return. Wallach's right hand was cut and blood was on his hand and pants. Burns and Wallach then dropped defendant off downtown." 108 Mich. App. 145, 147-148; 310 NW2d 306 (1981).
Rhonna Burns' memory had been hypnotically refreshed prior to trial and was admitted over defendant's objections that the hypnosis may very well have irreparably tainted her true memory so that she was merely parroting suggestions implanted by the police. A review of the events preceding the trial illustrates the fact that defendant's objections were well-founded.
On March 5, 1979, Detectives Werner and Thompson of the Waterford Police Department conducted the first interview with Rhonna Burns. She conveyed the following description of the events of Saturday, January 27, 1979. At around 10 o'clock that morning, she and John Wallach went to the Liberty Bar. Shortly after their arrival, John left the bar with Fred Torres and a man named Chico. She remained at the bar and watched television. When John returned to the bar she went out to his car and fell asleep. Shortly thereafter John came out and fell asleep in the *619 car. Detective Werner asked Rhonna if she and John had given anybody a ride home. She said that they had dropped off someone at Voorheis Road, but she did not remember where or whom. The police drove Ms. Burns to Chico's house located on Voorheis, and she identified it as the house where she and John Wallach had dropped someone off. She also remembered giving someone else a ride that night. The police asked Rhonna if she remembered John Wallach being covered with blood when he came back to the bar to pick her up that night, and she replied no.
On March 13, 1979, Detectives Werner and West conducted a second interview with Rhonna Burns. At this interview Ms. Burns reiterated substantially the same story.
On March 29, 1979, Detective Werner and Sergeant Dorrance conducted a third interview with Rhonna Burns. Initially, Ms. Burns failed to remember anything new about the night in question. Detective Werner asked Burns if she saw defendant at the Liberty Bar on the night of January 27, 1979. Burns replied she did not remember seeing him. Burns remembered Wallach stating that he was going to give Fred Torres and Chico a ride to the Wide Track Bar. She then remembered Wallach coming back to the bar and sitting in the booth with her. Detective Werner asked her if the defendant was sitting in the booth with her and John, and she replied that she did not remember. She then recalled that Wallach pointed to an old man sitting at the back of the bar, and said they should give him a ride home because he was drunk. She, Wallach, and the old man left the bar together, and they drove the old man home. Burns could not remember if they met anyone at the old man's house. After dropping him off they met *620 Chico and drove him home. She and Wallach then returned to the Liberty Bar where Wallach left her alone for a while.
Detective Werner and Sergeant Dorrance left, but returned later to show Burns some photographs. They showed her photographs of Elmer Evans, but Burns was not sure that he was the same old man that she and Wallach had taken home. When asked if she knew where the old man lived, Burns described a big, new house with dark siding. This description fit the house located at 2610 Silver Down Court where Evans' body had been found. Burns subsequently identified a picture of the house at 2610 Silver Down Court and said it looked like the house at which the old man had been dropped off. Werner then asked Burns if she had returned to this house at 5 a.m. on Sunday, January 28, and if she got out of the car, saw some bodies, and screamed. She replied that she could have, but that she did not remember. Either during or prior to this interview, Officer Werner told Burns that defendant was short, stocky, and of Mexican or Spanish descent. At some point in this interview, Werner showed Burns a photograph of defendant and asked her if she had seen him in the Liberty Bar. Burns still did not remember defendant being at the Liberty Bar.
Detective Werner held a fourth interview with Rhonna Burns on April 3, 1979. For the first time Burns remembered defendant sitting at the bar with her and Wallach on the night of January 27, 1979. She also remembered Wallach and defendant walking up to the old man and asking him if they could give him a ride home. The old man gave defendant his car keys. Burns, Wallach, and the old man left the bar together and picked up defendant *621 on the way to what Burns believed to be the old man's house. Both Wallach and defendant helped the old man out of the car and to the house. Wallach, Burns, and defendant then drove back to the Liberty Bar, picking up Chico along the way and dropping him off at home. When they arrived at the bar, Wallach and defendant got out of the car and left Burns there to sleep. Burns said that later Wallach came back to the car and the two of them drove to Tina Meston's house. Officer Werner asked Burns whether she remembered Wallach picking up a shovel at Tina's and putting it in the car. Burns replied yes. When asked whether she and Wallach drove back to the old man's house so he could cover the bodies, and whether she got out of the car and saw the bodies and screamed, she answered that she must have seen the bodies to scream but that she could not remember surely. She was then asked if she saw Wallach cover the bodies with snow using the shovel, and she answered that she could have, but that she did not think so. At this interview, Burns consented to Officer Werner's request that she undergo hypnosis to improve her memory.
On April 13, 1979, Werner and another officer picked up Burns to drive her to Lansing for the hypnosis session. En route, the officers drove Burns to the murder scene, where she stated that this was where she and Wallach had driven the old man. While walking around the grounds, she remembered various details of the night in question. The officers then drove Burns to the Crescent Machine Company where Evans' car was found. Burns was not sure that this was the area where they had picked up defendant on the evening in question. They then proceeded to Lansing, where Dr. Donald Rossi, Director of Behavioral Sciences *622 for the Michigan Department of State Police, conducted the hypnosis session.
It is obvious that by the time Rhonna Burns was hypnotized by Dr. Rossi, the various interviews conducted by the police had already suggested to her their theory of the killing.
II
In People v Tobey, 401 Mich. 141, 145; 257 NW2d 537 (1977), we reaffirmed our adherence to the rule of Frye v United States, 54 US App DC 46, 47; 293 F 1013, 1014 (1923), limiting the admission of scientific evidence to techniques which have gained general acceptance in the particular areas in which they belong. In determining the admissibility of the testimony of a witness whose memory had been hypnotically refreshed, the Court of Appeals employed the Frye test. The prosecutor contends that the Frye rule is inapplicable in this context, because the rule is concerned only with the admissibility of expert opinion deduced from the results of lie detector tests, truth serums, drunkenness tests, and narcotics tests. The prosecutor also contends that hypnosis is one of many methods of refreshing recollection, like reviewing notes. We find these arguments unpersuasive. Hypnotizing a witness to improve his memory is not in fact like any other method of refreshing a witness's recollection. As the California Supreme Court pointed out in People v Shirley, 31 Cal 3d 18, 53; 181 Cal Rptr 243, 264; 641 P2d 775, 795 (1982), cert den 458 U.S. 1125; 103 S. Ct. 133; 74 L. Ed. 2d 114 (1982),
"[T]he hypnotic process does more than permit the witness to retrieve real but repressed memories; it actively contributes to the formation of pseudomemories, to the witness' abiding belief in their veracity, and *623 to the inability of the witness (or anyone else) to distinguish between the two."[3]
The prosecutor's argument that the Frye rule is inapplicable proceeds from an unduly narrow reading of the opinions invoking the Frye rule. The purpose of this rule is to prevent the jury from relying on unproven and ultimately unsound scientific methods. The technique of hypnosis is scientific, and the testimony of the witness is the product of the use of the technique. The induced recall of the witness is dependent upon and cannot be disassociated from the underlying scientific method.[4] Accordingly, we conclude that the Court of Appeals was correct in applying the Frye test in the instant case.
In its opinion, the Court of Appeals reviews the literature and case law available on this subject. There is no need to repeat here the exhaustive summary of articles on the use of hypnosis to refresh recollection. At this point, we need make only the following observations by way of summary. The hypnotic state is a condition of altered consciousness marked by heightened suggestibility. A subject in a hypnotic state may not have accurate recall. A hypnotized subject is highly susceptible to suggestion, even that which is subtle and unintended. Such suggestion may be transmitted either during the hypnotic session or before it by such persons as, in this case, the policemen investigating *624 the killing. The person under hypnosis experiences a compelling desire to please either the hypnotist or others who have asked the person hypnotized to remember or who have urged that it is important that he or she remember certain events. The subject may produce the particular responses he believes are expected of him.[5] In this state of hypersuggestibility and hypercompliance the subject will unconsciously create answers to the questions which the hypnotist asks if he cannot recount the details being sought. This process of filling the gaps of memory with fantasy is called confabulation. Neither the person hypnotized nor the expert observer can distinguish between confabulation and accurate recall in any particular instance. Finally, a witness who is uncertain of his recollections before being hypnotized will become convinced through the process that the story he told under hypnosis is true and correct in every respect. This effect not only persists, but the witness's conviction of the absolute truth of his hypnotically induced recollection grows stronger each time he is asked to repeat the story.
Despite the problems associated with hypnotically refreshed or created memory, at present the majority of jurisdictions which have considered the question have allowed the testimony of one who has had his memory "refreshed" through hypnosis. Some courts have held that such testimony is admissible only if stringent safeguards are followed, State v Hurd, 86 NJ 525; 432 A2d 86 (1981), being the leading case in this area. Nonetheless, *625 the Court of Appeals did not believe that even the Hurd standards provide sufficient safeguards.[6]
"While the Hurd standards would have the tendency to minimize distortion due to hypnotic suggestibility, our examination of the literature convinces us that, even following these criteria, substantial problems with confabulation, fantasy, and distortion would remain. Consequently, in individual cases, the Hurd standards might have an affirmatively detrimental effect. The standards, themselves, would give the hypnotic process an aura of reliability which, in actuality, it does not possess. It is far too likely that a jury would be even less critical of the testimony because of the indicia of reliability provided by such standards." 108 Mich. App. 159-160.[7]
*626 The Court of Appeals concluded that hypnosis as a technique to enhance memory recall has not received sufficient scientific recognition of reliability to allow the posthypnotic "recollections" of witnesses to be introduced into evidence. This conclusion is reinforced by the recent trend of authority which holds that the use of such testimony is so fraught with danger that its admission is prohibited. See People v Shirley, supra; Strong v State, 435 NE2d 969 (Ind, 1982); Commonwealth v Nazarovitch, 496 Pa 97; 436 A2d 170 (1981); State v Mena, 128 Ariz 226; 624 P2d 1274 (1981); People v Palmer, 210 Neb 206; 313 NW2d 648 (1981); State v Mack, 292 NW2d 764 (Minn, 1980). We agree with the conclusion that the process of hypnosis and its outcome is inherently unreliable. Hypnosis has not received sufficient general acceptance in the scientific community to give reasonable assurance that the results produced under even the best of circumstances will be sufficiently reliable to outweigh the risks of abuse or prejudice.
III
The process of hypnosis is not a reliable means of accurately restoring forgotten incidents or repressed *627 memory, and to permit posthypnotic testimony would unfairly denigrate the defendant's right to cross-examination. Therefore, we hold that until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy, and until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases.
We do not foreclose, by this opinion, the use of hypnosis as an extremely useful investigative tool. A party could preserve a witness's prehypnotic testimony by using an MRE 804(b)(1) deposition. After the hypnotic session, the subject would be considered "unavailable as a witness".
Affirmed.
FITZGERALD, C.J., and WILLIAMS, LEVIN, COLEMAN, and RYAN, JJ., concurred with KAVANAGH, J.
RILEY, J., took no part in the decision of this case.
NOTES
[1] MCL 750.316; MSA 28.548.
[2] People v Gonzales, 108 Mich. App. 145; 310 NW2d 306 (1981).
[3] See 108 Mich. App. 158, fn 7.
[4] Polk v State, 48 Md App 382, 394, 427 A2d 1041 (1981). Many other courts have applied the Frye test to the issues surrounding admission of hypnotically induced recall. See, e.g., State v Mena, 128 Ariz 226, 231; 624 P2d 1274 (1981); People v Shirley, 31 Cal 3d 18, 51; 181 Cal Rptr 243, 263; 641 P2d 775 (1982), cert den 458 U.S. 1125; 103 S. Ct. 133; 74 L. Ed. 2d 114 (1982); State v Mack, 292 NW2d 764, 771 (Minn, 1980); State v Palmer, 210 Neb 206; 313 NW2d 648, 655 (1981); Commonwealth v Nazarovitch, 496 Pa 97; 436 A2d 170, 171-178 (1981).
[5] Rhonna Burns agreed to undergo hypnosis at the request of the police. The officers investigating the murder accompanied Rhonna to the hypnosis session and remained in the room with her throughout the session. Burns admitted that she was frightened by the police. They had told her that if she didn't "come up with something" she could be put in isolation.
[6] The Hurd standards set forth by the New Jersey Superior Court are:
"`(1) The hypnotic session should be conducted by a licensed psychiatrist or psychologist trained in the use of hypnosis.
"`(2) The qualified professional conducting the hypnotic session should be independent of and not responsible to the prosecutor, investigator or the defense.
"`(3) Any information given to the hypnotist by law enforcement personnel prior to the hypnotic session must be in written form so that subsequently the extent of the information the subject received from the hypnotist may be determined.
"`(4) Before induction of hypnosis, the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them, carefully avoiding adding any new elements to the witness' description of the events.
"`(5) All contacts between the hypnotist and the subject should be recorded so that a permanent record is available for comparison and study to establish that the witness has not received information or suggestion which might later be reported as having been first described by the subject during hypnosis. Videotape should be employed if possible, but should not be mandatory.
"`(6) Only the hypnotist and the subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and post-hypnotic interview.' State v Hurd, 173 NJ Super 333, 363; 414 A2d 291 (1980).
"In Hurd, the court ultimately ruled that the state had not met its burden of showing that the standards had been complied with. Consequently, it granted defendant's motion to suppress a witness's identification which could not be made until she had submitted to a pretrial hypnotic procedure." 108 Mich. App. 159.
[7] In People v Shirley, supra, the Supreme Court of California pointed out additional reasons why such standards are not sufficient to avoid the risks inherent in admitting hypnotically induced testimony.
"Next, we observe that certain dangers of hypnosis are not even addressed by the Hurd requirements: virtually all of those rules are designed to prevent the hypnotist from exploiting the suggestibility of the subject; none will directly avoid the additional risks, recognized elsewhere in Hurd, that the subject (1) will lose his critical judgment and begin to credit `memories' that were formerly viewed as unreliable, (2) will confuse actual recall with confabulation and will be unable to distinguish between the two, and (3) will exhibit an unwarranted confidence in the validity of his ensuing recollection. (432 A2d 93-94.) The Attorney General proposes no `safeguards' to deal with these knotty problems." 31 Cal 3d 39; 181 Cal Rptr 255; 641 P2d 787.
ORDER
Entered on April 25, 1983. REPORTER.
On order of the Court, the Court on its own motion has reconsidered its opinion in this matter. On reconsideration, it is ordered that the following language be added thereto:
This opinion should not be read as determining the question of the admissibility of this witness's testimony concerning facts she was able to recall and relate prior to hypnosis, a question which is reserved until raised on an adequate record in an appropriate case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1216839/ | 37 Wash. App. 133 (1984)
678 P.2d 852
DEBRA JEAN CANTWELL, Appellant,
v.
SAFECO INSURANCE COMPANY, Respondent.
No. 10841-7-I.
The Court of Appeals of Washington, Division One.
March 26, 1984.
Chambers & Young and Thomas J. Chambers, for appellant.
Brian F. Kreger, for respondent.
*134 SODERLAND, J.[*]
Appellant Debra Jean Cantwell was injured while riding in an uninsured vehicle owned by Carl McKenzie which left the road and rolled over. Cantwell was included as a covered person under her stepfather's Safeco policy. The policy contained an underinsured motorist provision.
Cantwell filed suit under RCW 7.04.040 to compel Safeco to arbitrate and secured an order to show cause. She alleged that she was a passenger in the uninsured vehicle. Safeco filed an answer and counterclaim. Safeco denied Cantwell's allegations, requested affirmative relief under RCW 7.04, including findings and conclusions on the contested issues, and prayed for dismissal of the complaint with prejudice.
The matter came before the court on the motion calendar and was put over to another date because more time was needed. Both sides filed affidavits. Safeco claimed that Cantwell was not entitled to recover or to proceed to arbitration because she had been the driver at the time of the accident. The trial judge considered the affidavits and heard argument of counsel, but took no evidence. The judge entered findings of fact and found as a fact that Cantwell was the driver at the time of the accident, and dismissed Cantwell's complaint with prejudice.
The trial court was in error. There was no basis for the court to enter findings of fact because no evidence had been taken. The court did not follow the procedure mandated by RCW 7.04.040. The court has no power under that statute to decide disputed issues of fact without a trial.
The statute under which the court was proceeding reads as follows:
(1) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the court for an order directing the parties to proceed with the arbitration in accordance with their agreement. Eight *135 days notice in writing of such application shall be served upon the party alleged to be in default. Service thereof shall be made in the manner provided by law for service of a summons in a civil action in the court specified in RCW 7.04.020. If the court is satisfied after hearing the parties that no substantial issue exists as to the existence or validity of the agreement to arbitrate or the failure to comply therewith, the court shall make an order directing the parties to proceed to arbitrate in accordance with the terms of the agreement.
(2) If the court shall find that a substantial issue is raised as to the existence or validity of the arbitration agreement or the failure to comply therewith, the court shall proceed immediately to the trial of such issue. If upon such trial the court finds that no written agreement providing for arbitration was made or that there is no default in proceeding thereunder, the motion to compel arbitration shall be denied.
RCW 7.04.040.
[1] This statute establishes a motion procedure through which a party, on 8 days' notice, can get the case moving to arbitration if there is no dispute over the right to arbitrate, or moving immediately to trial if there is such a dispute. The issue before the court, when hearing an application under RCW 7.04.040, is whether any substantial issue exists as to the right to have an arbitration hearing. If there is no such issue, the court orders the parties to arbitrate pursuant to the agreement. If the court finds that a substantial issue is raised as to the right to have an arbitration hearing, there shall be an immediate trial of that issue. The trial court is not authorized to settle the issue upon a motion without a trial. Whether the court shall compel arbitration depends on the outcome of the trial.
Here, Cantwell's claim against Safeco was dismissed on the basis of a factual finding without a trial. The affidavits presented to the trial court demonstrate a factual conflict. Therefore, a trial is essential. Cantwell suffered retrograde amnesia and could not state of her own knowledge whether she was driving or not. Carl McKenzie, the owner of the uninsured vehicle, states in his affidavit that Cantwell was *136 driving at the time of the accident. He says she drove from the time they left a certain grocery store. A passenger who was asleep in the backseat at the time of the accident says by affidavit that Carl McKenzie was driving when they left that grocery store and when they crossed a bridge before getting to the accident scene. There is a direct factual conflict. There were affidavits as to the location of the people in the vehicle after it had rolled over. Varying inferences could be drawn from the facts. The trial judge commented that the preponderance of the evidence pointed to Cantwell as the driver. But that issue was not before the court on the showing made by affidavits. It merely emphasizes the need for a trial.
The underinsured motorist provision in the policy stated:
We will pay damages which a covered person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury sustained by a covered person and caused by an accident.
The parties have agreed that the owner of the vehicle was uninsured and that Cantwell was an additional covered person under her stepfather's Safeco policy. If Cantwell was the driver of the uninsured vehicle, she could not recover under the language of the underinsured motorist provision because she would not be legally entitled to recover damages from herself as the driver. The agreement to arbitrate would not apply if, under the language of the policy, the covered person is not entitled to recover from anyone. The resolution of the factual issue as to who was driving disposes of the question of coverage. Under RCW 7.04.040 the issue of the applicability of the arbitration clause is an issue "as to the existence ... of the arbitration agreement". It is not the same as a factual dispute over the liability of an uninsured driver.
The question of coverage is a matter for the court to decide and is not an issue for arbitration. The issues of liability and injuries and damages are the issues to be arbitrated. Hartford Accident & Indem. Co. v. Novak, 83 Wash. 2d 576, 520 P.2d 1368 (1974); Rau v. Liberty Mut. Ins. *137 Co., 21 Wash. App. 326, 585 P.2d 157 (1978). We hold that the factual dispute over who was driving is for the court to decide because that issue determines the applicability of the policy provisions.
The findings of fact, conclusions of law and order of the trial court are reversed and the case is remanded to the trial court to proceed to trial on the issue of who was driving the uninsured vehicle. Whether or not to order arbitration depends upon the outcome of that factual dispute.
CALLOW and RINGOLD, JJ., concur.
NOTES
[*] Judge Stanley C. Soderland is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1773173/ | 475 So. 2d 1071 (1985)
Herbert RODRIGUE, Burton G. Klein and Mary Borrell
v.
Alvin C. COPELAND and Popeye's Famous Fried Chicken, Inc.
No. 85-C-0484.
Supreme Court of Louisiana.
September 10, 1985.
*1072 Cecil M. Burglass, Jr., New Orleans, for plaintiff-applicant.
Peter Butler, New Orleans, for defendant-respondent.
DIXON, Chief Justice[*].
Plaintiffs, three residents of the Pontchartrain Shores Subdivision in Jefferson Parish, instituted this action to enjoin defendant, Alvin C. Copeland, from erecting and operating his annual Christmas display. The plaintiffs sought injunctive relief under C.C. 667-669 due to problems associated with an enormous influx of visitors to their limited access, residential neighborhood.
The preliminary injunction was denied by the trial judge on December 15, 1983. After trial of the permanent injunction, the trial court, on August 31, 1984, denied the permanent injunction, but also ordered the defendant to limit the exhibition to thirty days and to deactivate the display at 11:00 p.m. nightly. Relief was otherwise denied. The court of appeal affirmed the denial of injunctive relief and further held that the trial court's restrictions were not obligatory on the defendant, but were "parameters" within which defendant could "operate", but "if he operates outside of those *1073 parameters, his display could be ... declared a nuisance in fact and, hence, abated." Rodrigue v. Copeland, 465 So. 2d 67, 72 (La.App.1985).
Since 1977 defendant has annually maintained a Christmas display on his premises at 5001 Folse Drive. The display has grown in size and popularity since the year of its inception. The display consists of an extravagant array of lights and lighted figures accompanied by traditional Christmas music.
The neighborhood is a limited access area which is zoned solely for single family residences. Defendant's premises, which front on Folse Drive, are bounded to the north by the Lake Pontchartrain levee, to the east by a public right-of-way and to the west by the residence of plaintiff Mary Borrell. (See appendix for map of the neighborhood).
Since 1982 defendant's exhibition has drawn numerous spectators to the neighborhood during the hours while the display is in operation. The spectators view the display either from their automobiles or on foot after parking their vehicles in the surrounding neighborhood. The increased congestion in the neighborhood has created numerous problems for some of the defendant's neighbors such as restricted access to their homes, noise, public urination, property damage and a lack of on-street parking.
The plaintiffs[1] commenced the present action on November 30, 1983. They prayed for an injunction restraining defendant or his agents from erecting or activating the display.
On December 1 the Parish of Jefferson also sought injunctive relief to prevent Copeland from maintaining his display. The parish alleged that defendant was in violation of the Jefferson Parish Code of Ordinances and the Comprehensive Zoning Ordinance. The primary basis for this suit was the alleged presence of decorations and other structures on parish property adjoining 5001 Folse Drive.
The two suits were consolidated and a hearing was set for December 6, 1983. Prior to the hearing, the trial judge visited the site of the display on December 3. On that same day a pretrial conference, attended by counsel and two representatives of the Jefferson Parish Sheriff's Office, was held at the home of the trial judge.
The hearing on the preliminary injunction commenced on December 6, 1983. Harry Lee, the Sheriff of Jefferson Parish, testified that his office had devised a plan which would facilitate a smoother flow of traffic in the neighborhood. The plan was to go into effect each night while the display was in operation. Under the plan, the traffic was to be directed down Transcontinental Drive in a northerly direction toward the display. The right-hand, northbound lane of Transcontinental was to be blocked off and reserved for use by emergency vehicles. Once the automobiles reached the intersection of Folse and Transcontinental, they would be required to turn left on Folse or make a U-turn onto the southbound lanes of Transcontinental. Under the plan, Folse was to be redesignated as a westbound, one-way street and westbound vehicles on Folse were to be permitted to pass in front of the display.
The sheriff testified that the plan would require the services of seven deputies. Two of the deputies were to patrol the Transcontinental neutral ground on horseback while the others were to direct traffic. Two or three portable toilets were to be placed on the neutral ground in order to control the problem of urination on property of nearby residents. Two motor scooters were to be stationed at the site for use in medical emergencies.
The sheriff also testified that residents of the area would be given identification placards which, upon being displayed to on duty deputies, would allow them to obtain access to their homes. In order to combat the litter problem, the sheriff suggested the deployment of prison "trustees" to pick up trash each morning. He also contemplated *1074 the use of a forty passenger bus to transport visitors to and from the display.
Katherine Knight, a practicing pediatrician and director of pediatrics at Charity Hospital, testified that she resides at 4624 Transcontinental, three blocks from the display. She stated that the southbound traffic on Transcontinental was constant and speedy while the exhibition was in operation. She claimed that her driveway had been obstructed by the autos of visitors to the site and she had trouble backing out of her driveway. On one occasion, while she was "on call," it took her an additional thirty minutes to reach Charity Hospital as a result of the traffic. She also complained that her own Christmas displays were stolen and her family was constantly harrassed by people wishing to use the facilities in her home. Finally, she expressed regret that her children were unable to have their friends over during the Christmas season due to the traffic.
The hearing was recessed and continued until December 13. In the interim, on December 10, the plan delineated by the sheriff went into effect. Upon resumption of the hearing on December 13, Colonel Roy Jacobs testified regarding the effectiveness of the plan. He stated that since the plan went into effect, traffic moved more smoothly and there had been no reports of trash or drunkenness. However, according to Jacobs, the traffic was very heavy on Saturday, December 10.
The plaintiffs and two other witnesses testified regarding the damage and inconvenience caused by the display. They testified that the traffic was very heavy even after implementation of the sheriff's plan. Burton Klein and Edward Hernandez both testified that they spent an inordinate amount of time getting home from work as a result of the traffic. Klein testified that the westbound traffic on Folse Drive had been backed up as far as Clearview, thirteen blocks from the display.
According to Hernandez, who resides at 4733 Transcontinental Drive, he has spent fifteen minutes getting out of his driveway during the peak hours of traffic. Klein and Hernandez also testified that they were unable to have friends over or have parties since access to their houses was limited and parking was not available. The witnesses also complained of loud noises from a combination of sources such as the crowd in front of defendant's house, music from his loudspeakers, slamming of car doors and car horns.
Klein testified that the exhibition and the crowds created a "carnival atmosphere." Hernandez stated that in past years vendors had sold cotton candy and Christmas trinkets at the display site. Borrell, Copeland's next door neighbor, stated that she can hear defendant's Christmas music while inside her home.
Roy Easley of 4964 Folse Drive testified regarding a five minute video tape of the display taken by him. The tape, which was admitted into evidence, was taken on Saturday night December 10, Sunday night December 11, and Tuesday morning December 13. The nighttime portions of the video depicted bumper to bumper traffic moving at a very slow pace. The sheriff's plan was in effect at the time of the video as is evidenced by the presence in the video of a portable toilet and mounted deputies, both located on the neutral ground of Transcontinental.
The defendant testified that the display is normally activated in early December and it is dismantled on or about January 5. The display is activated at dusk and it normally remains in operation until 11:00 p.m. on weekdays and 12:00 o'clock midnight on weekends. He admitted that on occasion the display may have been activated past midnight. During the past few years, the display's cost of $30,000 to $50,000 has been borne entirely by defendant's business, A. Copeland Enterprises, Inc.
Defendant called five residents of the neighborhood who testified that the display was not unpleasant and the traffic situation was much improved since institution of the sheriff's plan. Ben Montalbano of 4924 Folse Drive testified that the heavy traffic lasted for only one hour. He claimed that prior to institution of the traffic plan he *1075 was concerned about the traffic, but that his apprehensions had been allayed by the plan. Rosemary Wyman of 4920 Folse testified that she was in favor of the display, but on cross-examination she admitted that the traffic on Transcontinental was backed up beyond West Esplanade on one occasion.
Colonel Jacobs was called back as a witness and he testified that the sheriff's traffic plan was instituted on Saturday, December 10, 1983. He claimed that problems with the plan would be corrected as they became evident. On cross-examination Jacobs testified that the sheriff's responsibility was restricted to traffic control and he was unable to alleviate problems such as the inability of the nearby residents to have their family and friends over during the holidays. Jacobs also stated that the plan was designed to control traffic and that it did not facilitate any reduction in the number of vehicles attracted to the area.
Based on the foregoing testimony, the trial judge denied the request for a preliminary injunction. The court cited C.C. 667-669 and found that the display was a mere inconvenience which was subject to regulation by the "rules of the police." C.C. 669. Plaintiffs sought remedial writs from the court of appeal and from this court, without success.
The trial of the permanent injunction was held on July 31, 1984. The record from the preliminary injunction was admitted into evidence and additional testimony was taken.
Colonel Jacobs testified that under the sheriff's plan, the traffic flowed smoothly. However, he estimated that more vehicles were able to reach the display after the plan went into effect. He also stated that it took three to five days to effectively implement the plan.
Two witnesses testified that the traffic was less of a problem after December 10, 1983. Ben Montalbano stated that he had no trouble backing his car onto Folse Drive. Vicent Maenza stated that the traffic was ninety percent better with the presence of the sheriff's deputies. Defendant offered to produce six additional witnesses who would testify similarly to Montalbano and Maenza, but the trial judge stated that such testimony would add nothing to defendant's case.
Burton Klein, one of the plaintiffs, testified that the sheriff's plan merely exacerbated the existing problem. According to Klein, the noise level was increased due to the presence of the sheriff's deputies who blew whistles and used amplifiers in directing the traffic. Also, he claimed that the noise from the traffic itself was greater because the plan facilitated the passage of more vehicles in front of the display. Finally, he contended that under the plan he did not have greater access to his house nor was he able to leave his home without great inconvenience.
After trial, the court granted limited injunctive relief, directing Copeland to limit his display to thirty days, commencing the first Saturday in December, and ordering him to turn off the display at 11:00 p.m., nightly. The court also permanently enjoined defendant from using the public property adjacent to his premises for any purpose. Injunctive relief was otherwise denied.
All parties except for the Parish of Jefferson appealed. The court of appeal affirmed the district court's denial of injunctive relief. Rodrigue v. Copeland, supra. Furthermore, the court held that the restrictions imposed by the district court on the time and duration of the display did not have the force and effect of a court order. Instead the court concluded that the restrictions were merely "... parameters within which the court would not find the display to be a nuisance in fact." 465 So.2d at 72.
Plaintiffs now seek reversal of the court of appeal judgment. They contend that they are damaged by the display and are therefore entitled to have it abated. Plaintiffs maintain that the sheriff's traffic control plan exacerbates the problem by accelerating the flow of traffic and thereby attracting more traffic to the area. They *1076 also maintain the court of appeal erred in finding that the restrictions imposed by the trial court did not have the force and effect of a court order. Finally, plaintiffs contend that the lower courts erred in failing to find that defendant's display constitutes a commercial use of his premises in violation of the Jefferson Parish Comprehensive Zoning Ordinance.
Defendant argues that his display is, at most, an inconvenience to the plaintiffs. He maintains that he may not be held accountable for damage occasioned by visitors attracted to the display. Finally, defendant argues that any limitation upon his display would be unconstitutional since his rights of free speech and religious expression would be abridged.
ISSUES
I. Whether defendant's display constituted a commercial use of his premises such that he is in violation of the Jefferson Parish Comprehensive Zoning Ordinance.
II. Whether plaintiffs are entitled to injunctive relief under the obligations of neighborhood imposed by Civil Code articles 667-669.
III. Whether the imposition of injunctive relief would infringe on defendant's constitutional freedoms of religious expression and speech.
COMMERCIAL USE
Plaintiffs contend that defendant's exhibition constitutes a commercial use of his premises in violation of the Jefferson Parish zoning ordinance. The neighborhood is zoned solely for residential use. Plaintiffs support their allegation with defendant's testimony that the cost of the display, $30,000-$50,000, has been borne by his business, A. Copeland Enterprises, Inc., since 1980. Defendant owns 100% of the stock in A. Copeland Enterprises, Inc. This corporation is the parent company of Popeye's Famous Fried Chicken, Inc.
Richard Tatalluto, the assistant comptroller of A. Copeland Enterprises, testified that the costs of the display are handled as a business expense of the company. He also stated that although he does not prepare the tax returns, he was aware that the company deducted its business expenses for tax purposes. Further support for plaintiffs' allegation is found in Burton Klein's testimony that he had observed, on television, a Popeye's sign which was located in the front yard of defendant's home.
Defendant maintains that his display is not an advertisement, but rather that it is intended simply as his personal expression of the spirit and meaning of Christmas. He contends that he immediately removed a small Popeye's Famous Fried Chicken sign from his front yard on one occasion several years prior to the suit. According to Copeland the sign had been placed upon the premises without his consent by his advertising department and it remained on his premises for just one day.
The Comprehensive Zoning Ordinance for Jefferson Parish[2] generally restricts the use of property zoned "R-1 residential" to non-commercial uses. If defendant's display was primarily intended to promote his commercial enterprises, it would be prohibited.
Our analysis of the facts and law lead us to affirm the lower courts' finding that the display did not constitute a commercial use of defendant's property. Therefore, defendant's *1077 display is not barred by the zoning ordinance.
Although the expenses of the display have been borne by defendant's business, the lower courts reasonably could have concluded that the display was intended primarily for defendant's personal satisfaction. The display is temporary in nature. With the exception of one day, several years prior to this suit, it has not included any reference to his business interests. The evidence does not indicate that the display has been used in any media advertisements of defendant's business. Based on these facts, the lower courts could conclude that the display did not constitute a commercial use of his premises.
OBLIGATIONS OF NEIGHBORHOOD (C.C. arts. 667-669)
Owners of immovable property are restrained in the use of their property by certain obligations. These obligations include the responsibilities imposed by articles 667-669 of the Civil Code:
"Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him." C.C. 667.
"Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors's [neighbor's] house, because this act occasions only an inconvenience, but not a real damage." C.C. 668.
"If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place." C.C. 669.
These obligations of vicinage are legal servitudes imposed on the owner of property. These provisions embody a balancing of rights and obligations associated with the ownership of immovables. As a general rule, the landowner is free to exercise his rights of ownership in any manner he sees fit. He may even use his property in ways which "... occasion some inconvenience to his neighbor." However, his extensive rights do not allow him to do "real damage" to his neighbor.
At issue in this case is whether Copeland's light and sound display has caused a mere inconvenience or real damage to his neighbors and their right to enjoy their own premises.
In determining whether an activity or work occasions real damage or mere inconvenience, a court is required to determine the reasonableness of the conduct in light of the circumstances. This analysis requires consideration of factors such as the character of the neighborhood, the degree of the intrusion and the effect of the activity on the health and safety of the neighbors.
In the past, this court has borrowed from the common law of nuisance in describing the type of conduct which violates the pronouncements embodied in C.C. 667-669. In Robichaux v. Huppenbauer, 258 La. 139, 150, 245 So. 2d 385, 389 (1971), we considered whether a horse stable located in the City of New Orleans could be abated under C.C. 669. We stated the following test:
"Thus noxious smells, rats, flies and noise may constitute an actionable nuisance although produced and carried on by a lawful business, where they result in material injury to neighboring property or interfere with its comfortable use and enjoyment by persons of ordinary sensibilities. McGee v. Yazoo & M.V.R. Co., 206 La. 121, 19 So. 2d 21 (1944)." (Emphasis added).
*1078 This test has also been applied by the courts of appeal: McCastle v. Rollins Environmental Services of Louisiana, Inc., 415 So. 2d 515, 519 (La.App. 1st Cir.1982) ("... whether the alleged nuisance produces serious or material discomfort to persons of ordinary sensibilities in a normal state of health."). Allen v. Paulk, 188 So. 2d 708, 709 (La.App. 2d Cir.1966) ("... whether the alleged nuisance produces such a condition as, in the judgment of reasonable men, naturally produces actual physical discomfort to normal persons of ordinary sensibilities, tastes, and habits.").
Although the common law of nuisance has no binding, precedential value in the courts of this state, that body of law does correspond to some extent with the obligations of neighborhood established by C.C. 667-669. Therefore, the analysis employed by the courts of our sister states has been useful as persuasive authority regarding the application of our law.
In Hero Lands Co. v. Texaco Inc., 310 So. 2d 93, 98 (La.1975), we recognized that the prohibitions contained in C.C. 667-669 were not limited to the physical invasion of neighboring premises. According to the court:
"... The damage may well be intrinsic in nature, a combination of facts and conditions which, taken together, do not involve a physical invasion but which, under the circumstances, are nevertheless by their nature the very refinement of injury and damage." (Citations omitted).
Since plaintiffs seek injunctive relief, they must prove irreparable injury in addition to the necessary showing of real damage under C.C. 667-669. C.C.P. 3601; Salter v. B.W.S. Corp., Inc., 290 So. 2d 821 (La.1974); Hilliard v. Shuff, 260 La. 384, 256 So. 2d 127 (1972). Applying the foregoing principles to this case, we conclude that defendant's display has occasioned real damage, not mere inconvenience, upon plaintiffs. Likewise, we conclude that plaintiffs will be irreparably harmed unless injunctive relief is granted.
Defendant's exhibition constitutes an unreasonable intrusion into the lives of his neighbors when considered in light of the character of the neighborhood, the degree of the intrusion and its effect on the use and enjoyment of their properties by his neighbors.
The record demonstrates that the affected area is a single family residential neighborhood. Access to the neighborhood is restricted to residential streets and Transcontinental Drive, a divided paved thoroughfare which ends at Folse Drive, just to the east of defendant's residence. There is no access to and from defendant's premises from the north since the Lake Pontchartrain levee is located immediately to the rear of the lots fronting on Folse Drive.
The damage suffered by plaintiffs during the operation of defendant's display is extensive, both in terms of its duration and its size. Defendant's display becomes operative in early December and remains in operation until January 5. During this period, plaintiffs are forced to contend with a flow of bumper to bumper traffic through their limited access neighborhood. In addition, they must endure the noise and property abuse associated with the crowd of visitors who congregate near the display.
The display begins operation at dusk each evening and continues until 11:00 p.m. on weekdays and 12:00 midnight on weekends. The display is occasionally operational beyond midnight. While in operation, it features an extravagant display of lights which are located across the front of defendant's residence, on the roof and in the enclosed yard to the west of the residence. Some of the lights comprising the display are shaped into figures such as a star, a reindeer, a snowman, three angels and a depiction of Santa and his reindeer. Lights are also located in the trees and shrubs. In addition to the lights, the display features a tapestry proclaiming "Glory to God in the Highest" and a creche.
Noise emanates from the display and from the visitors. The display is accompanied by traditional Christmas music which is amplified through loudspeakers located on the second floor of defendant's residence. *1079 The music is audible inside the home of Mary Borrell. The plaintiffs also complain of noise emanating from car engines, car horns, the slamming of car doors and police whistles.
The record clearly indicates that traffic in the neighborhood is congested due to the slow progress of vehicles carrying spectators by the display. The traffic has seriously impaired the ability of plaintiffs to gain access to and from their premises. Furthermore, on street parking for plaintiffs or their guests becomes virtually nonexistent. As a result of the traffic congestion and lack of parking, plaintiffs and children of defendant's neighbors cannot have their own Christmas celebrations and gatherings.
Defendant contends that the sheriff's traffic plan has minimized any damage to the plaintiffs. Although the plan has facilitated a smoother (quicker) flow of traffic, the remaining problems still exist. The plaintiffs still experience extended delay in reaching and leaving their premises. The noise associated with the display and the crowds remains. Furthermore, the duration of the display has been unaffected by the plan.
The increased traffic attracted to the display has some impact on the health and safety of the residents. The response time for emergency services is increased due to the traffic congestion. However, the record indicates that this danger was minimized under the sheriff's plan through the creation of an emergency lane on Transcontinental and the presence of two motor scooters to be used in medical emergencies. If the physical health and safety of the plaintiffs had been the only factor to consider, we would not have deemed it necessary to restrain defendant's display. However, in consideration of all the factors, the district court committed clear error in failing to find that plaintiffs suffered damage under C.C. 667-669 and irreparable injury. Likewise, the court of appeal erred in affirming the district court.
Plaintiffs' injury stems from the nature and size of the display which render it incompatible with a restricted access, residential neighborhood. Defendant is enjoined from erecting and operating a Christmas exhibition which is calculated to and does attract an unusually large number of visitors to the neighborhood.
In complying with our order, defendant is specifically enjoined from placing oversized lighted figures, such as the reindeer and snowman, in his yards or upon the roof of his residence.[3] The proper place for these "commercial size" decorations is not within a quiet, residential neighborhood. Defendant is also specifically ordered to reduce the volume of any sound accompanying the display so that it is not audible from within the closest homes of his neighbors.
In limiting his display, the burden is placed on defendant to reduce substantially the size and extravagance of his display to a level at which it will not attract the large crowds that have been drawn to the neighborhood in the past.
Of course, defendant is free to maintain his display unrestricted, at a location which is appropriate. The injunction granted herein is limited to activity at defendant's premises on Folse Drive.
CONSTITUTIONAL ISSUES
Defendant contends that injunctive relief affecting his display would infringe on his constitutional freedoms of speech and religious expression. Defendant places emphasis on the religious character of his display, claiming that the display as a whole is intended as part of his celebration of the birth of Christ. In his brief, defendant emphasizes that his display includes a creche (nativity scene),[4] angels, a religious tapestry and a Star of Bethlehem.
*1080 The First Amendment to the United States Constitution provides:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The corresponding provisions of the Louisiana Constitution, located in Article 1, §§ 7 and 8 provide:
"Section 7. No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.
Section 8. No law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof."
The First Amendment and the constitutional provisions of this state do not guarantee the absolute right to express one's views at any time and in any manner. Reasonable time, place and manner restrictions may be applied to the expression of one's views where a significant governmental interest is served and the restrictions are not based on the content of the views expressed. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981); Consolidated Edison Co. of New York v. Public Commission of New York, 447 U.S. 530, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980).
The restrictions imposed on defendant's display do not contravene his constitutional right to express his beliefs. Our decree merely places reasonable limitations on the size of the display in order to prevent defendant's expression from infringing on the rights of plaintiffs. Plaintiffs' protected rights under C.C. 667-669 justify the limitations on defendant's display.
In consideration of defendant's right of religious expression, he is free to retain the religious symbols which are included in his display, that is, the Star of Bethlehem, nativity scene, religious tapestry and oversized lighted angels. The limitations on defendant's activity do not extend to the content of the display.
DECREE
For the foregoing reasons, the judgment of the court of appeal is reversed. Defendant is enjoined from operating his display in a manner which attracts bumper to bumper traffic and extremely large numbers of visitors to his limited access, residential neighborhood.
BLANCHE, J., concurs with reasons.
CALOGERO, J., dissents, would reinstate the judgment of the court of appeal.
*1081
BLANCHE, Justice (concurring).
I respectfully concur and join with the majority in finding defendant's Christmas display a nuisance. However, this writer would prefer not to tell the defendant what he could or could not display. I would enjoin the entire display, including all of the religious items, and let the defendant proceed at his own risk in the future. It takes no more than a consideration of the feelings and sensibilities of one's neighbors to come up with decorations that do not amount to a nuisance.
NOTES
[*] Honorable Henry L. Yelverton served as Justice Ad Hoc in place of Justice Jack Crozier Watson, recused.
[1] Herbert Rodrigue, Burton G. Klein and Mary Borrell.
[2] The Comprehensive Zoning Ordinance for Jefferson Parish provides, in part:
"SECTION VIISINGLE FAMILY RESIDENTIAL DISTRICTR-1
1. DESCRIPTION:
This district is composed of certain lands and structures having a low density, single family residential character and additional open area where it is desirable and likely that such similar development will occur. Uses are limited to single family residences and such non-residential uses as are intended primarily to provide service to the adjacent neighborhood.
2. PERMITTED USES:
In R-1 Districts only the following uses of property shall be permitted:
A. Single Family dwellings.
..."
An exhaustive list of permissible uses follows the above stated portion of the zoning ordinance. None of the permissible uses, therein listed, appear applicable to the present case.
[3] In deference to defendant's right of religious expression, discussed in the final portion of this opinion, he is permitted to retain the lighted star and angels.
[4] Defendant purchased the nativity figures on December 2, 1983, three days after plaintiffs' suit was filed and one day after suit was filed by the Parish of Jefferson. At trial, he maintained that the figures were not purchased as a result of this lawsuit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1797263/ | 720 So. 2d 460 (1998)
Philip S. SCURRIA, Sr., et al., Plaintiffs-appellants,
v.
Billy Charles H. HODGE, et al., Defendants-appellees.
Nos. 31207-CA, 31208-CA.
Court of Appeal of Louisiana, Second Circuit.
October 30, 1998.
Rehearing Denied December 3, 1998.
*461 Bruscato, Tramontana & Wolleson by Anthony J. Bruscato, Monroe, for Appellants.
Lavelle Salomon, J. Edward Patton, Monroe, for Appellees Billy C. Hodge, Joseph S. Scurria and Tallulah Cablevision Corporation.
Hayes, Harkey, Smith & Cascio by Joseph Cascio, Jr., Monroe, for Appellee Harry G. Frazer, Jr.
Before MARVIN, C.J., and HIGHTOWER and CARAWAY, JJ.
CARAWAY, Judge.
In this action for breach of fiduciary duties, the two defendants acquired stock in a closely held corporation from the succession of Anthony Scurria. One of the defendants was a co-administrator of the succession and both were officers and directors of the corporation. Finding that the price received by the succession was far below the market value of the stock, we determine that the defendants/ fiduciaries breached their duties to the succession and reverse the ruling of the trial court which had dismissed the succession's claims.
Facts
Anthony Scurria ("Anthony") died on December 16, 1983. His eight heirs included his brothers, sisters and a niece. In January 1984, Joe Scurria ("Joe") and Sam Scurria, two of Anthony's brothers, were named co-administrators of the Succession of Anthony S. Scurria. LeRoy Smith, Jr., an attorney, was retained to represent the succession, and he subsequently hired Harry G. Frazer, Jr., a CPA, to value the assets for estate tax purposes.
In 1979 prior to Anthony's death, Anthony, Joe and their nephew, Billy Hodge ("Hodge"), had formed Tallulah Cablevision Corporation ("TCC"). One hundred fifty shares of stock were issued, with the shares being divided equally between the three shareholders. TCC borrowed $150,000 from a bank with all three shareholders signing the loan, and each shareholder additionally advanced $70,000 to the corporation. In the organizational minutes of TCC, Anthony, who became president, was authorized to execute promissory notes to each shareholder for his $70,000 loan to TCC. The $70,000 debt to Anthony remained outstanding at his death, although no promissory note was produced at trial and there was no evidence as to the note's terms. In 1980, Anthony further loaned additional funds to the corporation, and TCC was paying monthly installments on this loan which totaled approximately $27,500 at Anthony's death.
On February 27, 1984, at the first documented shareholders' meeting since TCC's *462 formation, Joe and Hodge were elected directors of the corporation, the articles of incorporation were amended to restrict the shareholders' right to sell stock to third parties and the bylaws were amended to provide that the board of directors could take action on behalf of the corporation. Previously, corporate action could only be taken upon unanimous consent of the shareholders. At the shareholders' meeting, Joe acted as administrator in voting the shares of the succession.
One of the purposes stated in the notice of the February 1984 shareholders' meeting was to authorize the listing of the corporation for sale with a broker. On that same date, Joe and Hodge signed a brokerage agreement on behalf of TCC authorizing Mid-South Media Brokerage, Inc. to market TCC for the price of $3,000,000. No deal was consummated during the term of the brokerage agreement, and the broker contract was eventually terminated.
Frazer, who had been the accountant for TCC, testified at trial that he had no particular knowledge or experience in valuing cablevision systems. In his calculations, Frazer used the estate tax guidelines provided by a federal revenue ruling. Using a capitalization of cash flow formula, he determined that Anthony's stock in TCC was worth $229,500, discounted by 15% as a minority interest, to $195,050. Frazer conveyed his opinion directly to Leroy Smith in a letter dated July 19,1984.
As the succession proceeding progressed, there was a need for cash to pay state and federal estate taxes. There was testimony that each of the eight heirs would have to pay between $17,000 and $18,000 to liquidate the succession debts and pay the required taxes if another method of generating income such as selling the stock or land or borrowing money was not agreeable. Joe and Hodge, the two remaining original shareholders of TCC, offered to purchase the estate's interest in TCC for $100,000.
A Petition for Authority to Sell was filed with the court on August 8,1984 to allow the estate to sell its interest in TCC to Joe and Hodge. However, on August 24, 1984, Leo Miller representing Sam Scurria, individually and in his capacity as co-administrator of the succession, Annie Scurria Lombardo and Philip S. Scurria ("Philip") filed an opposition to the petition. In September 1984, a meeting of all interested persons was held to discuss the value of the TCC stock. Ultimately, the opposition to the sale was withdrawn and having no opposition, the court signed an order in September 1984 granting authority to sell the estate's one-third share of the stock in TCC to Joe and Hodge for $100,000. Joe and Hodge also caused the two debts owed by TCC to the Succession of Anthony Scurria in the sum of $91,000 to be paid.[1]
After purchasing the estate's interest, Joe and Hodge listed TCC for sale in January 1985 for $2.3 million with another broker, Cable Properties, Inc. Around May 30, 1985, the assets of TCC were sold to Tallulah Cable TV, Inc. for $1.9 million with $1 million paid at closing and $900,000 plus applicable interest, payable in installments over a period of years.
On May 29, 1986, Philip, individually, filed suit against Joe and Hodge alleging that, as officers and majority shareholders of TCC, they violated their fiduciary duties owed to him and that Joe violated his fiduciary duties as co-administrator of the estate. Claims of misrepresentation and fraud were also alleged. On September 11, 1989, Philip filed a petition to re-open the succession and for appointment as provisional administrator in the Succession of Anthony S. Scurria. Upon the granting of the reopening of the succession and his appointment, Philip, as provisional administrator, filed a petition for damages against Joe, Hodge and TCC alleging the same basic claims as those in his individual suit. Later, Philip amended the consolidated actions to join Frazer as an additional defendant, alleging that Frazer committed professional negligence in valuing the stock.
*463 Following completion of plaintiffs' presentation of evidence, all defendants moved the court for an involuntary dismissal. The trial court granted Frazer's motion holding that there was insufficient evidence to prove Frazer was guilty of malpractice. This dismissal was affirmed by this court and the judgment is now final. Further, the trial court ruled that the evidence presented did not prove any intentional fraudulent misrepresentations made by Joe and Hodge and dismissed the claims for fraud. Following the presentation of the defense regarding the remaining issue, the trial court found there had not been a breach of fiduciary duties by Joe or Hodge and dismissed the suit.
Ruling of the Trial Court
In the very thorough written opinion of the trial court, the court gave a telling description of the tension existing among the family members during the administration of Anthony's succession. The court said:
The court has not ignored and thus acknowledges a history of distrust in the Scurria family. The successions of the parents of Anthony Scurria and his siblings had apparently been under administration for many years. According to the testimony the actions of Philip in the succession of the father were brought into question in litigation. These feelings of distrust and resentment carried over into the Succession of Anthony Scurria. Discussions at family meetings were often contentious and became heated at times. It is the opinion of the court that these old feelings of resentment and mistrust were among the principal reasons that constructive discussions broke down and the co-administrator, Sam S. Scurria, Jr., his brother Philip and sister Angelina got tired of the discussion and agreed to the sale of the one-third (1/3) interest in TCC knowing that the stock was potentially worth much more.
In the trial court's review of the case, the court focused much attention on the knowledge of Joe and Hodge regarding TCC's value in comparison to the knowledge of Philip and other heirs. Although the court had previously found at the conclusion of the plaintiff's case that no fraud or misrepresentations had been shown on the part of Joe and Hodge, the court's later analysis of the fiduciary issue also dealt extensively with miscommunication issues, such as the validity of claims regarding Joe's discussions with other heirs of his belief in the $3,000,000 value of the corporation and the plaintiff's claim that a $2.4 million dollar offer for TCC had been received by Mid-South Media Brokerage, Inc. but ignored by Joe and Hodge prior to the sale of the succession's interest. The trial court found that Sam Scurria, the co-administrator, knew the one-third interest in TCC was worth more than $100,000 and that Philip had more knowledge in valuing TCC than any other heir. In this comparison of the knowledge of the parties' relative to the proposed sale of the succession's interest in TCC, the trial court concluded:
The listing for three million dollars was discussed by the heirs in efforts to close the succession. The evidence demonstrated that Billy Hodge was a farmer who could not read. Joseph Scurria had a college degree in science but had returned home after college to assist his father in running a grocery store and operating a farm. Neither Hodge or Scurria impressed the court as a shrewd or unethical business operator. Joseph Scurria and Hodge had no assurance that TCC would sell or what the sale price may be when they purchased the one-third interest of Anthony.
Finally, the trial court ruled that the evidence showed "that the sale even though not a pleasant event was an arms length transaction." (Emphasis added) The unpleasant event to which the court alluded concerned the formal opposition filed by Sam, Philip and Annie and the resulting family meeting where the opposition parties finally "got tired of the discussion" regarding the value of TCC, withdrew their opposition and agreed to the sale.
Applicable Law
A succession representative has fiduciary duties under Louisiana law. La. C.C.P. art. 3191 provides that: "A succession representative is a fiduciary with respect to the succession, *464 and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act."
In discussing fiduciary duties in the analogous context of a partnership, our court has stated as follows:
The relationship of partners is fiduciary and imposes upon them the obligation of the utmost good faith and fairness in their dealings with one another with respect to partnership affairs. Each partner must refrain from taking any advantage of another partner by the slightest misrepresentation or concealment of material facts. The obligation is especially stringent on a partner who is managing the business, his duty being analogous to that of a trustee. The fiduciary duty of the partners is particularly applicable when one partner seeks to purchase the interest of another partner. Such a sale will be sustained only when it is made in good faith, for a fair consideration, and on a full and complete disclosure of all important information as to value. This duty of disclosure holds true despite the fact that the relations between the partners have become strained or in conflict.
W.A. McMichael Const. Co. v. D & W Properties, Inc., 356 So. 2d 1115, 1122 (La.App. 2d Cir.1978), writ denied, 359 So. 2d 198 (La. 1978), emphasis added.
As a prudent administrator, the succession representative has the duty to obtain "the best price reasonably obtainable" in a sale of a succession asset. Succession of Taglialavore, 500 So. 2d 393, 396 (La.1987). See also, Goldblum v. Boyd, 341 So. 2d 436 (La.App. 2d Cir.1976). It is axiomatic that if an administrator is uninformed about an asset's value at the time it is sold, he cannot be acting as a prudent administrator because he does not know if he is obtaining the fair market value. Cf. Succession of Irving, 436 So. 2d 1263 (La.App. 1st Cir.1983), writ denied, 442 So. 2d 452 (La.1983).
Similar to a succession representative's fiduciary obligations, officers and directors also have special duties to the corporation's shareholders. La. R.S. 12:91 states, in pertinent part, "Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment and skill which ordinarily prudent men would exercise under similar circumstances in like positions."
In a significant case by the United States Fifth Circuit Court of Appeal which summarized the Louisiana jurisprudence at that time, the court dealt with a situation where the officers/majority shareholders of a closely held corporation bought out the minority shareholders for a per share value which was greatly below the value which was indicated by all the available information within the officers' knowledge. Mansfield Hardwood Lumber Co. v. Johnson, 263 F.2d 748 (U.S.Ct.App. 5th Cir.1959), petition denied, 268 F.2d 317 (U.S.Ct.App. 5th Cir.1959). After finding that "the necessary mens rea for... actionable fraud" was not adequately established by the evidence, the court nevertheless held the officers accountable for the huge profit they made at the expense of the minority shareholders based upon the fiduciary duty of corporate officers, which the court discussed as follows:
* * * Whether this relationship between officers and directors and their stockholders is termed fiduciary or quasi-fiduciary or trust or confidence is immaterial, and, likewise, it is immaterial whether its breach is described as constructive fraud, unjust enrichment, fraudulent breach of trust, breach of fiduciary obligation, gross negligence, or otherwise, and whether the remedy is given by a constructive trust, restitution, or accounting. These are all relative terms describing broad equitable concepts. The standard of a fiduciary's duty to his beneficiary, depending upon the instant relation and the facts of the particular case, lies somewhere between simple negligence and willful misconduct or fraud with the intent to deceive. The actual intent to deceive is not required where one *465 party is so placed in such an advantageous position to the other.
Id. at 754.
The Louisiana Supreme Court, interpreting La. R.S. 12:91, has held that persons with a fiduciary duty "may not take even the slightest advantage, but must zealously, diligently and honestly guard and champion the rights" of the person or entity to which they owe that duty. Noe v. Roussel, 310 So. 2d 806 (La.1975). The fiduciary's dealings are subject to rigorous scrutiny. The court concluded that, "an agent who acquires his principal's property, or one who otherwise acts in a fiduciary capacity, bears the burden of establishing that the transaction was an arm's length affair." Id. at 818-819.
Discussion
Based upon the above legal authorities, the sale of TCC's stock to an administrator of the succession and to officers of the corporation carried on its face a presumptive or constructive fraud. Noe, supra. Thus, even in the absence of any wilful misrepresentation or actual fraud which was the emphasis in the trial court's ruling, a stringent burden of proof was placed upon Joe and Hodge to overcome an appearance of self-dealing to the possible detriment of the succession. The burden of proof required a showing by defendants that the transaction was an arms-length sale. Also, regarding Joe's duties as a representative of the succession, he must demonstrate that he acted as a prudent administrator in making the proposal for the sale. La. C.C.P. art. 3191.
The requirement for an arms-length transaction is the equivalent of a showing of market value.[2] The product of arms-length negotiations between informed and willing buyers and sellers is a market value price because both sides have sufficient knowledge and understanding of the value of the object in the market. See for example, Succession of Boyd v. Adams, 275 So. 2d 441 (La.App. 2d Cir.1973) and Gulf States Utilities Co. v. Norman, 183 So. 2d 421 (La.App. 3d Cir. 1966), writ refused, 185 So. 2d 529 (La.1966), where the courts discuss market value in terms of arms-length bargaining. When a fiduciary proposes to sell property in his trust to himself, the normal arms-length relationship between a competing buyer and a competing seller is missing, and the appearance that a fair price will be obtained is also absent, undermining the trust relationship. The fiduciary must therefore show that the price he pays is the fair market value.
Additionally, a succession representative charged to act as a "prudent administrator" is required to obtain knowledge of the value of the assets of the succession for various purposes. Particularly, upon the necessity of a sale of succession property for administrative purposes, a prudent administrator must know the market value of the asset to be sold.
Despite the trial court's assessment in this case regarding the lack of a devious, shrewd or manipulative motive on the part of Joe and Hodge, the court nevertheless concluded that they "had no assurance ... what the sale price may be when they purchased the one-third interest of Anthony." As fiduciaries who are responsible for initiating a sale to themselves, Joe and Hodge were under a duty to know what the sale price or market value of the stock was and to be able to justify it in September 1984 and at trial. They could not make a "full and complete disclosure of all important information as to value" (W.A. McMichael Const. Co., supra.) because they had neglected to find out.
The best evidence concerning the value of TCC, as indicated by the pricing methodologies within the industry, came from the testimony of three cable company brokers. Charles Grimes of Mid-South Media Brokerage, Inc. testified at trial that during the time period in 1984 when Joe and Hodge listed TCC with his company, cable businesses *466 were selling at prices ranging from $800 to $1,000 per subscriber. Given that Joe and Hodge had informed Grimes in early 1984 that TCC had between 2,200 and 2,400 subscribers, this would yield a price range of $1,760,000 to $2,400,000. Nevertheless, by their actions as directors of TCC in February 1984, they listed the corporation for sale with Grimes at $3,000,000.
The depositions of both William J. Dugan, Jr., a broker who met with Joe and Hodge but did not secure a brokerage agreement, and Edward Thorn, the broker who eventually sold TCC, were admitted into evidence at the trial. Dugan and Thorn both stated that in addition to the amount per subscriber methodology, another accepted means for determining the selling price of a cable company during this time period was to take fifty percent of the annual gross revenues of the business times a multiple of eight or nine.[3] The financial statements of TCC show that for the nine month period ending September 30, 1984, TCC's annual gross revenue was $325,488.83. Annualized, this amount would yield a gross revenue of $435,985.11.[4] After applying the formula and depending on whether a multiple of eight or nine is used, this method produces an estimated selling price range of $1,735,940 to $1,952,933.
Both of these pricing methodologies are borne out by the actual selling price of TCC for $1,900,000 in the spring of 1985, a price which falls squarely within the values predicted by these three brokers. From this testimony, we find that Joe and Hodge breached their fiduciary duties in September 1984 in failing to determine an arms-length sales price or fair market value for TCC upon which to base their price for the purchase of the succession's interest.
We are not persuaded by the argument that the exigencies of the moment in September 1984, with pressing deadlines for estate taxes, excuse the fiduciaries from their duties. Likewise, the heirs' knowledge and views about TCC expressed at the contentious family meeting described by the trial court did not negate the fiduciaries' duty to present an accurate disclosure of TCC's value based upon objective information gained from experts such as the three brokers who testified. With this rather unique asset whose market value was somewhat beyond the understanding of the local CPA and the heirs, the resentment and distrust existing among the parties must be cut through with a detailed and objective appraisal of that asset to determine the proposals for action for the administration of the succession.[5] The requirement for an arms-length sales price does not mean that the fiduciary may negotiate with the heirs which he represents and, after wearing them down with incomplete information, arrive at a price which can be justified as though market value has been obtained.
As a final matter, we have reviewed the record for a determination of the damages. The basic theory of reparation for the breach of a fiduciary duty is that the damaged party should be returned as nearly as possible to his condition prior to the act causing the damage. Langendorf v. Administrators of Tulane Ed. Fund, 361 So. 2d 905 (La.App. 4th Cir.1978), writs denied, 363 So. 2d 1384 and 364 So. 2d 120 (La.1978). However, when property has been sold and cannot therefore be returned to the succession, defendants are liable for damages in the amount of the difference between the market value at the time of the respective sale to the fiduciary and the actual sale price received by the succession. Succession of Irving, supra.
*467 Joe and Hodge purchased the succession's one-third interest in TCC in September 1984 for $100,000 and sold TCC in May 1985 for $1,900,000. Due to the relatively short time period between acquiring the succession's interest and selling the company and because the actual selling price fell within the value range testified to by the brokers, we find that $1,900,000 was the fair market value of TCC in September 1984. Considering TCC's debts and the brokerage commission which were paid by Joe and Hodge out of the sale proceeds, we place the net value of TCC at $1,550,000.[6] Therefore, the succession is entitled to damages in the amount of $516,666.67 less the $100,000 received in the sale to Joe and Hodge, plus interest from date of judicial demand.
Decree
For the foregoing reasons, it is ordered, adjudged, and decreed that there be judgment rendered in favor of the succession of Anthony S. Scurria and against Joseph S. Scurria and Billy Charles H. Hodge in the amount of $416,666.67, plus interest from the date of judicial demand. Costs are assessed to appellees.
REVERSED AND RENDERED.
APPLICATION FOR REHEARING
Before MARVIN, C.J., and HIGHTOWER, BROWN, STEWART and CARAWAY, JJ.
Rehearing denied.
NOTES
[1] TCC was technically the borrower of $191,000 used to pay the estate for its one-third interest in the corporation and the outstanding loans owed by TCC to Anthony. Joe and Hodge signed the loan in their capacities as corporate officers and the stock of TCC was pledged as security.
[2] For example, La. Admin. Code tit. 61, § I. 4301(3) (1987) defined market value for purposes of the Department of Revenue and Taxation as follows:
[T]he reasonable market value of tangible personal property is the amount a willing seller would receive from a willing buyer in an arms-length exchange of similar property at or near the location of the property being valued. The amount which would be realized from a "forced" sale is not acceptable as the market value for this purpose.
[3] The brokers testified that, in optimum circumstances, it was generally accepted that a cable system could be operated at a fifty percent cash flow level meaning fifty percent of the revenues went to the cost of operations with the other fifty percent being net profit before taxes.
[4] In fact, the financial statements reveal that as of December 31,1984, TCC had an actual annual gross revenue of $435,037.84.
[5] We need not evaluate the various proposals for other actions in September 1984, including the administrator's exercise of the power to borrow under La. C.C.P. art. 3228 or the calling of the TCC loans owed to the succession for $91,000. The administrator had the duty to make such proposals in the light of a full understanding of the value of TCC, and Joe never obtained such understanding or made an objective disclosure.
[6] We have utilized the full market value of the corporation for the determination of the value of the succession's minority share position. The February 1984 amendments to the corporation's bylaws deleting the provisions for the unanimous consent of the shareholders, establishing a board of directors, and restricting the sale of stock in the corporation were detrimental changes, diminishing the power and value of the succession's minority shareholdings. Such depletion of the succession's interest resulting from Joe's vote of the succession's shares and his personal shares would itself present a serious breach of Joe's fiduciary duties but for the contemporaneous agreement of the shareholders to effectively liquidate the corporation through the sale of the corporation as a whole. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2406336/ | 307 S.W.2d 233 (1957)
DALLAS FARM MACHINERY COMPANY, Petitioner,
v.
Ben REAVES, Respondent.
No. A-6316.
Supreme Court of Texas.
November 6, 1957.
Rehearing Denied December 18, 1957.
Wilbur T. Knape, Dallas, for petitioner.
Cantey, Hanger, Johnson, Scarborough & Gooch, Carlisle Cravens, Ed Reichelt and Sloan Blair, Ft. Worth, for respondent.
CALVERT, Justice.
Writ of error was granted in this case on two of thirty points of error contained in petitioner's application. The two points pose the question of whether parol evidence is admissible, in the face of a "merger" clause in a written contract, to establish that the contract was induced by fraud. We hold it is.
Petitioner, a partnership, as plaintiff, sought a recovery from respondent, as defendant, of the balance due on a written contract of purchase of an Oliver OC-3 crawler tractor and an Oliver-Ware 3W-I loader. By way of cross-action respondent sought a rescission of the contract and a recovery of the value of a Ford tractor and equipment he had delivered to petitioner as a part of the purchase price of the Oliver tractor and loader.
In a non-jury trial judgment was entered denying petitioner a recovery and awarding respondent the relief sought. Findings of fact and conclusions of law in support of the judgment were filed by the trial *234 judge. The judgment was affirmed by the Court of Civil Appeals. 300 S.W.2d 180.
A completed printed "Customer's Order For Oliver Equipment" form constitutes the written contract between the parties. It contains the following provision: "I have read the matter on the back hereof and agree to it as a part of this order as if it were printed above my signature. I also acknowledge receipt of a copy of this order which is understood to be the entire contract relating to the sale and warranty of the above described equipment excepting as to any notes, conditional sales contracts or chattel mortgages entered into as above specified." On the reverse side of the order and under a heading "Warranty and Agreement" is the following applicable language: "Seller warrants that new Oliver goods herein described are well made and of good material, and agrees to replace, F.O.B. sellers place of business, for a period of six months after delivery of such goods to Buyer by Seller, such parts found upon inspection to be defective in workmanship or material. * * * This warranty is made in lieu of all other warranties, express or implied, and no warranty is made or authorized to be made other than herein set forth. * * *"
The judgment for respondent rests upon pleading, proof and findings that respondent was induced to enter into the contract by false representations as to the work capabilities of the Oliver tractor and loader, knowingly made by one of petitioner's partners to respondent, on which he relied, and but for which he would not have entered into the contract. Petitioner objected to the evidence offered to support respondent's plea of fraud on the ground that it would vary the terms of the written contract. In asserting that evidence of oral representations of the work capabilities of the tractor and loader was inadmissible petitioner relies on the holdings in Avery Co. of Texas v. Harrison Co., Tex.Com.App., 267 S.W. 254, Wright v. Couch, Tex.Civ.App., 54 S.W.2d 207, no writ history, Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47 and Super-Cold Southwest Co. v. Elkins, 140 Tex. 48, 166 S.W.2d 97. More will be said of these cases later.
A review of the Texas cases on the question reveals conflicting decisions and indicates a resulting confusion which can hardly be resolved or explained away with nice distinctions. Some of the decisions should be noticed.
There are earlier cases dealing with the subject, but a good starting point for purposes of this discussion is Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873. Suit in that case was on a written contract for unpaid installments on the purchase price of law books. By cross action the defendant sought rescission and damages on the ground that he had been induced to enter into the contract by a promise of the plaintiff's agent to furnish future supplements, which promise was fraudulently made with no intention that it should be kept. The contract contained a provision that no representations or guaranties had been made by the salesman which were not expressed in the contract. The Court of Civil Appeals, being divided, certified to this court the question of the admissibility of evidence with reference to the oral promises. In answering the question this court said (234 S.W. 874):
"Contracts, though reduced to writing, are avoided when induced by material promises, never intended to be kept, not because one is allowed to vary his written contract, but because real assent is essential to a binding contract.
* * * * * *
"One who is entitled to avoid an entire written contract because it lacked his assent can no longer be bound by any of its stipulations, including those relating to representations or guaranties which induced its execution."
In the face of the holding in the Sawyers case, and taking no notice of it, Section A of the Commission of Appeals held, in J. I. Case Threshing Mach. Co. v. Manes, 254 *235 S.W. 929, that a purchaser of an automobile could not, on the basis of fraudulent antecedent oral representations of an agent as to the performance capabilities thereof (see Tex.Civ.App., 241 S.W. 757, 758), rescind and avoid the obligations of a written contract which contained a merger clause and a clause limiting the authority of the agent. The particular holding seems to rest on the fact that there was "no finding that plaintiff was induced to sign the contract by fraud or deceit." 254 S.W. 931.[1]
The holding in the Manes case was then made the foundation of the holding, by the same court, in Avery Co. of Texas v. Harrison Co., Tex.Com.App., 267 S.W. 254, relied on here by petitioner, which in turn, was quoted with approval by this court as decisive in Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47. It may be said that these cases, aided by the holding of the Eastland Court of Civil Appeals in Wright v. Couch, 54 S.W.2d 207, seemed, for a time at least, to establish firmly in our jurisprudence a distinction between fraud in the execution of a contract and fraud in the inducement of a contract, a distinction subsequently reinforced by the opinion of this court in Super-Cold Southwest Co. v. Elkins, 140 Tex. 48, 166 S.W.2d 97. But that distinction has not always been recognized or enforced, even by this court, as we shall see.
In Avery Co. of Texas v. Harrison Co., supra, plaintiff's suit was for damages growing out of the purchase of a tractor and some plows. The contract for the sale of the machinery contained a merger clause. The Court of Civil Appeals affirmed a recovery by the plaintiff on the ground that the plaintiff had pleaded and proved that he had been induced to enter into the contract by fraudulent representations made by agents of the work capabilities of the machinery. Avery Co. of Texas v. Harrison Co., 254 S.W. 1015. The Commission of Appeals' recommendation that the judgments of the trial court and the Court of Civil Appeals be reversed and that judgment be rendered for the defendant was adopted by this court. In its opinion the Commission of Appeals took notice of the Sawyers case (267 S.W. 257) but said that if the suit before it could be treated as one "for damages on the ground that plaintiffs were induced by fraud and deceit to enter into the contract" the pleadings were insufficient to sustain such action. In the course of the opinion, however, the court announced the rule that in the absence of allegations and proof that by reason of fraud, accident or mistake the written contract contained something not agreed to by the parties, or by reason thereof omitted some promise, representation or warranty or that by reason of some fraudulent representation, artifice, or conduct the parties were induced to sign the contract, or that when it was signed the parties did not know or were prevented from knowing what it contained, it would be conclusively presumed that the written contract contained the whole agreement of the parties and parol evidence of representations, statements or warranties not disclosed by the contract would not be admissible. 267 S.W. 256. The rule announced precludes a showing of fraud in the inducement of a contract as distinguished from fraud in the execution thereof. The rule thus announced in Avery Co. of Texas v. Harrison Co. became the rule of decision in Distributors Inv. Co. v. Patton, supra.
The Patton case involved a cross-action to rescind a written contract of purchase of a tractor and a wagon because of fraudulent representations of an agent regarding the work capabilities of the tractor and the newness of some of its parts. The written contract described the tractor as "secondhand," sold "as is." It contained a merger clause. A trial court judgment of rescission was entered on jury findings that the contract was induced *236 by the fraudulent representations. The judgment was affirmed by the Court of Civil Appeals in an opinion citing Edward Thompson Co. v. Sawyers, supra, Elliott on Contracts, Ruling Case Law, an A.L.R. annotation and decisions by Texas Courts of Civil Appeals for the proposition that any contract induced by fraud "as is" or otherwise, and even though containing a merger clauseis voidable and parol evidence is admissible for the purpose of establishing the fraud and vitiating the contract. 83 S.W.2d 782, 786-787. This court reversed the judgment of the Court of Civil Appeals and, on authority of J. I. Case Threshing Mach. Co. v. Manes, supra, Avery Co. of Texas v. Harrison Co., supra, and Wright v. Couch, supra, held that a written contract was voidable only for fraud in its execution, saying (110 S.W.2d 48):
"These representations were specifically negatived by the writing, and, if by denominating them fraud the written contract may be set aside, then a written contract is of no higher dignity than an oral one. The rule forbidding the varying of a written contract by parol would become a dead letter if prior oral agreements were permitted to govern the parties rather than subsequent written agreements on the same subject matter. Attaching the label of fraud to the oral representations does not change their character."
The court also quoted with approval from Wright v. Couch as follows (110 S.W.2d 49):
"False representations, whether regarding matters of present or past existence, or whether, (in the nature of promises) of future existence, do not constitute actionable fraud if the contract which it is claimed they induced specifically provides to the contrary of such representations and no claim is made that the contract does not express the true agreement."
The opinion took no notice of Edward Thompson Co. v. Sawyers or of the other authorities cited and relied on by the Court of Civil Appeals.
The rule of the Patton case, as drawn from Avery Co. of Texas v. Harrison Co. and Wright v. Couch, was again approved by this court in Super-Cold Southwest Co. v. Elkins, 140 Tex. 48, 166 S.W.2d 97, in which will be found the latest expression of this court and in which fraudulent representations in inducing the contract were alleged as a basis for a plea of total failure of consideration of purchase money notes given for a refrigerating device.
With the series of cases here analyzed (other than the Elkins case) before it, this court nevertheless held, in Texas & P. Ry. Co. v. Presley, 137 Tex. 232, 152 S.W.2d 1105, that fraudulent representations as to the extent of the plaintiff's injuries and fraudulent promises of permanent employment, of agents, all made to induce a contract of release of liability for damages, rendered the release voidable and could be established by parol evidence. The holding was made in the face of recitals in the written instrument that the plaintiff relied upon his own judgment as to the nature, extent and duration of his injuries and that no promise of employment or other agreement not mentioned in the release had been made. The defendant contended that inasmuch as the release contained the above recitals it could be avoided only by proof of fraud in its execution, but the court said: "We cannot assent to this contention, for the reason that if the release is voidable on account of fraud in its inception, then each and every portion and clause thereto (sic) is unenforceable and without binding effect on the plaintiff." 152 S.W.2d 1107.
The holding in the Presley case is doubly significant because of its precedural background. The opinion reflects that on original submission the Eastland Court of Civil Appeals, 127 S.W.2d 914, relying on the Patton case and the other cases cited *237 therein, reversed the trial court's judgment for the plaintiff and rendered judgment for the defendant, but on motion for rehearing, relying on Texas & N. O. Ry. Co. v. Thompson, Tex.Com.App., 12 S.W.2d 963 and Edward Thompson Co. v. Sawyers, supra, and cases therein cited, withdrew its first opinion and judgment and entered judgment affirming the trial court's judgment. The opinion on rehearing was adopted without qualification by this court.
By our decision in the Presley case this court quite obviously reverted to the rule of the Sawyers case and it found strong support in the Commission of Appeals' opinion in Texas & N. O. Ry. Co. v. Thompson, 12 S.W.2d 963, which intervened between the Avery and Patton cases. In that case the plaintiff sought to set aside a written release and to recover damages for personal injuries. His right to set aside the release was predicated on fraud in its inducement by way of a promise of an agent of employment by the principal. The release recited that no promise of employment had been made. The jury found that the promise was made and also found the necessary elements of fraud in the making thereof. There was no contention that there was any fraud involved in obtaining the plaintiff's signature. The defendant was denied the submission of a special issue inquiring whether at the time the release was executed and delivered the plaintiff knew of its terms and conditions. The defendant's right to the submission of the issue was the principal question before the Commission of Appeals. The court said that if an answer to the issue could not affect the result of the case the refusal to submit it would not be error, and continued:
"We are of the opinion that in so far as the jury finding is concerned, it is absolutely immaterial to any issue of this case whether plaintiff knew the terms and conditions of the release in question at the time he delivered same to the claim agent of the defendant, for the reason that, if fraud induced the execution and delivery thereof, under the settled law of this state the release was voidable and subject to be set aside for fraud." 12 S.W.2d 964.
The court thus by implication rejected the idea that only fraud in the execution of the release would avoid it and as authority for its holding cited the Sawyers case. It took no notice of Avery Co. of Texas v. Harrison Co. But the court was not satisfied to reject the idea by implication; it rejected it expressly in the following language:
"It is the contention of the defendants that, since the release itself contains the above-quoted provisions, ["no promise of employment * * * has been made" etc.] before plaintiff can set aside the release or contradict the terms thereof by oral evidence of fraud, the proof must show that fraud [was] committed in the preparation of the release, or that the claim agent by some fraudulent act had prevented the plaintiff from ascertaining the true terms and conditions of said release. We cannot assent to this contention, for the reason that if the release is voidable on account of fraud in its inception, then each and every portion and clause thereto (sic) is unenforceable and without binding effect on the plaintiff.
* * * * * *
"It therefore follows, from the above authorities, and many others, that even though the plaintiff may have read over the release, and may have known its contents at the time he signed and delivered same to the claim agent of the defendant companies, such fact, could not, in law, constitute such release a contract, binding on the plaintiff if it was procured by fraud. * *." 12 S.W.2d 964, 966.
There were a number of other Texas decisions, antedating the Patton case, which held that parol evidence was admissible to prove that a written contract containing a merger clause or a clause *238 disclaiming responsibility for representations of agents was induced by fraud. See United States Gypsum Co. v. Shields, Tex. Civ.App., 106 S.W. 724, 726, affirmed 101 Tex. 473, 108 S.W. 1165 (Representations by an agent; action for rescission); Kirby v. Thurmond, Tex.Civ.App., 152 S.W. 1099, 1102, no writ history (Representations by principal to an "as is" contract; suit for rescission and damages); Atchison T. & S. F. Ry. Co. v. Skeen, Tex.Civ.App., 174 S.W. 655, writ refused (Representations by agent; rescission); J. I. Case Threshing Machine Co. v. Webb, Tex.Civ.App., 181 S.W. 853, writ refused (Representations by agent; rescission); Hackney Mfg. Co. v. Celum, Tex.Civ.App., 189 S.W. 988, affirmed Tex.Com.App., 221 S.W. 577 (Representations by agent; rescission and incidental damages); Bankers' Trust Co. v. Calhoun, Tex.Civ.App., 209 S.W. 826, writ refused (Representations of agent; rescission); Landfried v. Milam, Tex.Civ. App., 214 S.W. 847, no writ history (Representations by agent; rescission or damages); Detroit Automatic Scale Co. v. G. B. R. Smith Milling Co., Tex.Civ.App., 217 S.W. 198, no writ history (Representations of agent; rescission); American Law Book Co. v. Fulwiler, Tex.Civ.App., 219 S.W. 881, no writ history (Representations of agent; rescission); George v. Birchfield, Tex.Civ.App., 264 S.W. 632, no writ history (Representations by principal; rescission); Advance-Rumely Thresher Co. v. Higgins, Tex.Civ.App., 279 S.W. 531, 534-535, writ dismissed (Representations by agent; suit for damages against principal); J. B. Colt Co. v. Wheeler, Tex.Civ. App., 12 S.W.2d 1102, writ dismissed, Tex. Com.App., 23 S.W.2d 299 (Representations by agent; suit for damages against principal); Scruggs v. Dean, Tex.Civ.App., 47 S.W.2d 378, writ dismissed (Representations by principal to "as is" contract; suit for damages); Norm Co. v. City Drug Stores, Tex.Civ.App., 59 S.W.2d 270, no writ history (Representations by principal; rescission); Free Sewing Machine Co. v. S. T. Atkin Furniture Co., Tex.Civ. App., 71 S.W.2d 604, no writ history (Representations by Agent; rescission and incidental damages). No effort has been made to exhaust the list of such cases.
The rule of the Patton case has subsequently been applied in substantially similar fact situations in Willis v. Adams, Tex. Civ.App., 138 S.W.2d 855, writ dismissed; Billington v. Vest, Tex.Civ.App., 268 S.W.2d 705, no writ history; and Rogers v. J. I. Case Co., Tex.Civ.App., 272 S.W.2d 429, no writ history. On the other hand, there are subsequent Court of Civil Appeals' decisions, in addition to the decision in this case, which have not applied the rule of the Patton case. See Strickler v. International Harvester Co., Tex.Civ.App., 141 S.W.2d 989, writ dismissed, correct judgment; Lone Star Olds Cadillac Co. v. Vinson, Tex.Civ.App., 168 S.W.2d 673, writ refused, want of merit, in which there was a vigorous dissent based on the Avery Co., Wright, Patton and Elkins cases, and which the majority sought to harmonize with the Patton case on the ground that the complaining party was induced not to read the contract; Super-Cold Southwest Co. v. Willis, Tex.Civ.App., 219 S.W.2d 144, writ refused, N.R.E., in which the contract was not read; Super-Cold Southwest Co. v. Chowning, Tex.Civ.App., 248 S.W.2d 504, writ refused, N.R.E., in which it was said that if the contract was induced by fraud the absence of fraud in its execution was immaterial; Coleman v. Ammons, Tex.Civ. App., 249 S.W.2d 1014, no writ history, in which there was also a vigorous dissent based on the Avery Co., Wright and Patton cases; Roy Klossner Co. v. F. B. McIntire, Tex.Civ.App., 301 S.W.2d 197, writ of error pending, in which the court recognized the conflict in prior decisions and chose to follow the Sawyers and Presley decisions rather than the Patton decision.
The two conflicting lines of authority may not be distinguished on the ground that different remedies are sought, that is, that some are suits for damages and others are actions for rescission, for it is well settled that one who is induced by fraud *239 to enter into a contract has his choice of remedies. "He may stand to the bargain and recover damages for the fraud, or he may rescind the contract, and return the thing bought, and receive back what he paid." Blythe v. Speake, 23 Tex. 429, 436 [Reprint 421, 428]; Russell v. Industrial Transportation Co., 113 Tex. 441, 251 S.W. 1034, 258 S.W. 462, 463, 51 A.L.R. 1. Neither may the Avery Co. and Patton cases on the one hand be distinguished from the Thompson and Presley cases on the other on the ground that the former involved contracts of purchase and the latter contracts of release of liability. Aside from the fact that the nature of the contracts affords no sound basis for a distinction in law, it will be noted that in the Thompson and Presley cases, involving releases of liability, the courts relied strongly on the Sawyers case which involved a contract of purchase, and that the Sawyers opinion, in turn, cited as principal authority Rapid Transit Ry. Co. v. Smith, 98 Tex. 553, 86 S.W. 322, a case involving a release of liability.
Considering the state of our decisions herein reviewed and noted, we find ourselves confronted with a situation identical with that faced by the Supreme Judicial Court of Massachusetts in Bates v. Southgate, 308 Mass. 170, 31 N.E.2d 551, 133 A. L.R. 1349. That case involved the same question involved in the instant case. Prior decisions of the Massachusetts courts were in the same state of conflict and confusion as are our decisions, and for the same reason. The Massachusetts court chose to resolve the conflict by adopting the rule that a written contract containing a merger clause can be avoided for antecedent fraud of fraud in its inducement and that the parol evidence rule does not stand in the way of proof of such fraud The court's opinion, written by Justice Qua, predicates the decision on sound public policy, as follows (31 N.E.2d 558):
"As a matter of principle it is necessary to weigh the advantages of certainty in contractual relations against the harm and injustice that result from fraud. In obedience to the demands of a larger public policy the law long ago abandoned the position that a contract must be held sacred regardless of the fraud of one of the parties in procuring it. No one advocates a return to outworn conceptions. The same public policy that in general sanctions the avoidance of a promise obtained by deceit strikes down all attempts to circumvent that policy by means of contractual devices. In the realm of fact it is entirely possible for a party knowingly to agree that no representations have been made to him, while at the same time believing and relying upon representations which in fact have been made and in fact are false but for which he would not have made the agreement. To deny this possibility is to ignore the frequent instances in everyday experience where parties accept, often without critical examination, and act upon agreements containing somewhere within their four corners exculpatory clauses in one form or another, but where they do so, nevertheless, in reliance upon the honesty of supposed friends, the plausible and disarming statements of salesmen, or the customary course of business. To refuse relief would result in opening the door to a multitude of frauds and in thwarting the general policy of the law."
We make the same choice made by the Massachusetts court, and in so doing we bring the law on the subject in this state into harmony with the great weight of authority, 32 C.J.S. Evidence § 979 a, pp. 942-946; 23 Am.Jur. 778-781, Fraud and Deceit, § 26; 75 A.L.R. 1041-1068; 127 A.L.R. 137-156; 133 A.L.R. 1361-1362; with the rule of the Restatement of the Law of Contracts, Vol. 2, sec. 573, p. 1079; and with the views of eminent textwriters. Corbin on Contracts, Vol. 3, sec. 580, pp. 257-260 ("But fraud in the inducement of assent, * * * may make the contract voidable without preventing its existence, *240 and without showing that the writing was not agreed on as a complete integration of its terms. In such case the offered testimony * * * merely proves the existence of collateral factors that have a legal operation of their own, one that prevents the written contract from having the full legal operation that it would otherwise have had. This is not varying or contradicting the written terms of agreement, although it does vary or nullify in part their legal effect."); Williston on Sales, Revised Ed., Vol. 3, sec. 631b, p. 435 ("It is a common provision in written contracts that no other promises, representations or inducements were made than are contained in the writing. Such provisions are effectual to exclude warranties not included in the writing unless based on fraudulent misrepresentations, but it is now well settled that such provisions cannot bar proof of fraudulent representations or remedy for them."); Williston on Contracts, Revised Ed., Vol. 3, sec. 811A, pp. 2281-2285 ("And like the parol evidence rule, the merger clause is ineffectual to exclude evidence of extraneous prior or contemporaneous representations of either the principal or an agent to establish fraud by way of defense or in an action for rescission, since even if the principal is himself innocent, he cannot be allowed to retain a benefit obtained by the fraud of his agent. * * * There are decisions which distinguish between fraud in the inducement of the contract and fraud in the execution, holding the merger clause precludes proof of the former kind. This distinction is not to be supported."); Wigmore on Evidence, Second Ed., Vol. 5, sec. 2439, pp. 325-326 ("Fraud is always a matter of false representations; and how is it that extrinsic representations are as warranties to be ignored but as fraud to be admitted? The explanation seems to be that the vital additional element in fraud is the party's state of mind, which neither can be nor is intended to be embodied in the written document, and that hence the rule does not forbid considering it wherever it is the vital element of the claim."); Elliott on Contracts, Vol. 1, sec. 70 ("If one is induced to go through the form of making a contract because of some fraud or misrepresentation made by the other party or his agent, relative to a material element of the agreement, such that if he had known the truth he would not have given his assent, the contract may be avoided by him. There can be no real assent when it is induced by fraud."); Vol. 2, sec. 1650; McCormick and Ray, Texas Law of Evidence, Second Ed., Vol. 2, sec. 1644 ("* * * it is only when the oral expressions are relied on as warranties, that is, as parts of the contract, as being obligations intentionally assumed, that the Parol Evidence Rule applies. If they are relied on as misrepresentations and the theory of recovery or defense is fraud, then the Parol Evidence Rule is clearly without application. On the latter proposition there has been some apparent wavering in Texas cases where the writing contained a disclaimer of warranties, or `merger clause'. Yet even here the sounder authority seems to admit extrinsic agreements for the purpose of avoiding the instrument for fraud.");[2] Black on Rescission and Cancellation, Vol. 2, sec. 408. For interesting comments on Texas cases, see 21 T.L.R. 811, 27 T.L.R. 361, 366, and 31 T.L.R. 906.
In the instant case the remedy sought is rescission. In an article in 27 T.L.R. 361, 369, the author suggests that an innocent principal should not be required to respond in damages for the fraud of his agent when the written contract limits the authority of the agent, and that in such situations the wronged party should be relegated to his action for rescission or a suit for damages against the agent. The suggested rule was adopted and applied in Super-Cold Southwest Co. v. Willis, Tex.Civ.App., 219 S.W.2d 144, writ refused, N.R.E., in which rescission was allowed but a recovery of damages against an innocent principal was disallowed. That *241 question is not before us and we do not decide it.
The trial court filed detailed findings of fact fully supporting respondent's right of rescission. Many of petitioner's points of error attack holdings of the Court of Civil Appeals that the findings of fact have support in the evidence. We have reviewed the pertinent evidence and conclude that there is evidence of probative force supporting the findings. Accordingly, these points of error are overruled.
The purchase price of the Oliver tractor and loader was $4,134.50. By the terms of the contract petitioner agreed to accept in satisfaction thereof the sum of $2,050 in cash and a "trade-in" of a Ford tractor with Wagner loader and an F. & F. Rotocycle Cutter. Respondent made advance arrangements with a bank for a loan of a sufficient sum to cover the cash payment and as security for the loan gave the bank a mortgage on the old machinery and a mortgage on the new machinery, with the understanding that when the new machinery was delivered and the serial number filled in the mortgage thereon the mortgage on the old machinery would be released. When the contract of purchase was executed respondent delivered to petitioner his check for $2,050, drawn on the mortgagee bank. Immediately after delivery of the machinery and discovery by respondent that it would not perform as represented, payment on the check was stopped and the machinery was stored and respondent demanded a return of the trade-in machinery. The demand was refused by petitioner who sold the trade-in machinery and took possession of the Oliver machinery under a writ of sequestration. In his cross-action respondent prayed for rescission of the contract and cancellation of the check and for recovery of $2,094 representing the reasonable cash market value of the trade-in machinery. Judgment was awarded according to respondent's prayer.
Petitioner seems to contend that by the execution of the chattel mortgage respondent ratified the contract and disabled himself from rescinding the contract. The chattel mortgage was executed before respondent discovered that the machinery would not perform as represented and cannot be regarded as a ratification of the contract. Neither does the execution of the mortgage prevent a rescission of the contract. Payment on the check was stopped and the money advanced by the bank was not used. The evidence does not indicate the continued existence of the debt which the mortgage was intended to secure. There being no debt the lien of the mortgage was extinguished. Perkins v. Sterne, 23 Tex. 561, 563 [Reprint 548, 550]; 29 Tex.Jur. 916, Mortgages, sec. 94. A some what similar contention was summarily disposed of by the San Antonio Court of Civil Appeals in Packard-Dallas, Inc., v. Carle, 163 S.W.2d 735, 738.
Petitioner complains of the recovery by respondent of the sum of $2,094. One objection to the recovery is that respondent failed to prove the necessary measure of damages as set out in Morriss-Buick Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889, to-wit: the difference between the value of what he parted with and what he received under the contract. The Pondrom case involved an affirmance of a contract procured by fraud and a suit for damages. The measure of damages there set out has no application to a suit for rescission. The money recovery awarded in this case was the market value of the trade-in machinery which petitioner had sold. It was awarded in lieu of a return of the trade-in machinery. There was evidence supporting the trial court's finding that the fair market value of the machinery was $2,100, and it was not error to award respondent a recovery of $2,094 in lieu of the return of the trade-in machinery. Black on Rescission and Cancellation, Vol. 2, sec. 690, p. 1560, sec. 695, p. 1570; 12 C.J.S. Cancellation of Instruments § 79 d (1), p. 1093.
The judgment of the Court of Civil Appeals is affirmed.
*242 SMITH, Justice (concurring).
I am not prepared to agree with the analysis of the many cases referred to in the majority opinion. However, I agree with the result reached in this case for the reason that the record shows that the entire transaction, including the statements made by Mr. Kincaid (owner) and Mr. Myers (agent), was one of continuing fraud and in my opinion the findings of the trial court are sufficient to show fraud in the inducement or procurement as well as fraud in the execution of the contract. Under the record in this case, I see no reason for going into the record of the cases such as the Patton case which involved different facts and different pleadings.
It is proper to affirm the judgment of the Court of Civil Appeals.
NOTES
[1] Emphasis ours.
[2] Emphasis the authors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382601/ | 587 P.2d 44 (1978)
92 N.M. 266
STATE of New Mexico, Plaintiff-Appellee,
v.
Thomas C. GALIO and Joe Cruz, Defendants-Appellants.
No. 3276.
Court of Appeals of New Mexico.
July 5, 1978.
Writ of Certiorari Quashed November 15, 1978.
*45 Timothy P. Woolston, Albuquerque, for defendants-appellants.
Toney Anaya, Atty. Gen., Santa Fe, Michael E. Sanchez, Roderick A. Dorr, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.
OPINION
HENDLEY, Judge.
Defendant, Galio, was convicted of one count of dismantling a motor vehicle without a license contrary to § 64-8-1(A)(2), N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 2, 1972, Supp. 1975), conspiracy to dismantle a motor vehicle without a license contrary to § 40A-28-2, N.M.S.A. 1953 (2d Repl. Vol. 6, 1972), four counts of vehicles without manufacturer's numbers contrary to § 64-9-7, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 2, 1972), three counts of receiving or transferring stolen vehicles contrary to § 64-9-5, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 2, 1972) and § 64-37-4, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 2, 1972, Supp. 1975), and one count of receiving stolen property contrary to § 40A-16-11(A) and (E), N.M.S.A. 1953 (2d Repl. Vol. 6, 1972, Supp. 1975). Defendant, Cruz, an employee of Galio's, was convicted on one count of conspiracy supra and one count of receiving stolen property supra. They appeal alleging several points for reversal. Point I regarding a warrantless search (inspection) is dispositive and we reverse.
A warrantless inspection, whereby the numerous criminal violations were discovered, was conducted of Galio's business premises (Auto Diagnostic and Repair Clinic) by the Albuquerque Police Department. The inspection was made pursuant to § 64-2-14, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 2, 1972) which states in part:
"POLICE AUTHORITY OF DIVISION. The Commissioner and such officers, deputies and inspectors of the division as he shall designate by the issuance of credentials shall have the powers:
"* * *
"(d) Inspect any vehicle of a type required to be registered hereunder in any public garage or repair shop or in any place where such vehicles are held for sale or wrecking, for the purpose of locating stolen vehicles and investigating the title and registration thereof;
"(e) To determine by inspection that all dealers and wreckers of vehicles are in compliance with the provisions of this act with particular reference to but not limited to the requirements for an established place of business and for records."
We are not here concerned with a consent search or with probable cause to search. The sole issue is whether § 64-2-14(d) and (e), supra, meets the requirements of a warrantless search as set forth in State ex rel. Environmental v. Albuquerque Pub., 91 N.M. 125, 571 P.2d 117 (1977) and the subsequent United States Supreme Court case of Marshall v. Barlow's Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305, decided May 23, 1978. We hold that it does not.
State ex rel. Environmental v. Albuquerque Pub., supra, lists four tests. We discuss the third test of whether the warrantless inspection is a crucial part of a regulatory scheme designed to further an urgent government interest. See United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970); Compare, Camara *46 v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967).
We must first decide what is an urgent governmental interest. Historically it is one that involves some inherent danger of public concern or an interest in excisable or dutiable articles as opposed to a private concern or interest. The Biswell rationale was that a close scrutiny of interstate firearms traffic was undeniably of key importance to federal efforts to prevent violent crimes and to assist the states in regulating firearm traffic within their borders. Warrantless inspections were deemed to be reasonable official conduct and essential to properly supervise firearms traffic. The Colonnade rationale was that of an interest in an historically regulated industry with deep concern in the revenues to the government. Further, it was in response to a relatively unique circumstance. See Marshall.
Unless the statutory or regulatory standards involve a relatively unique circumstance a warrant is required to make an inspection as was made in the instant case. See Marshall.
Although not enacted as a part of the law which enacted § 64-2-14, supra, § 64-37-1, N.M.S.A. 1953 (2d Repl. Vol. 9, 1972, pt. 2, Supp. 1975) reflects the policy of the legislature with respect to motor vehicles which states:
"... The distribution and sale of motor vehicles in this state vitally affects the general economy of the state and the public interest and welfare of its citizens. It is the policy of this state and the purpose of this act [64-37-1 to 64-37-16] to exercise the state's police power to ensure a sound system of distributing and selling motor vehicles and regulating the manufacturers, distributors, representatives and dealers of those vehicles to provide for compliance with manufacturer's warranties, and to prevent frauds, unfair practices, discriminations, impositions and other abuses of our citizens."
That policy is similar to 29 U.S.C.A. § 651 of the Occupational Safety and Health Act, which states:
"(a) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.
"(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources "
Marshall held that a warrantless search under the OSHA policy would not be reasonable under the Fourth Amendment. In light of Marshall and the foregoing cases we fail to see what urgent government interest would be served by a warrantless inspection. Our holding does not foreclose warrantless inspections in case of consent or in an emergency situation. However, what constitutes an emergency situation must be decided case by case. See Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486, decided May 31, 1978.
We hold that § 64-2-14, supra, requires the issuance of an administrative warrant, absent consent or an emergency situation. Marshall sets forth the grounds for issuance of such a warrant as follows:
"... Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that `reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment].' Camara v. Municipal Court, supra, [387 U.S.] at 538, 87 S. Ct. 1727. A warrant showing that a *47 specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights... ."
The act is unconstitutional insofar as it purports to authorize a warrantless inspection outside the generally recognized exceptions. Accordingly, the motion to suppress should have been granted.
Reversed and remanded.
IT IS SO ORDERED.
WOOD, C.J., and LOPEZ, J., concur.
WOOD, Chief Judge (Specially Concurring).
The State contends the inspection scheme involved in this case plays a crucial part in regulating motor vehicles. By inference, the argument is that the inspection scheme plays a crucial part in the State's efforts to control the traffic in stolen vehicles. I agree that the Legislature could properly consider an inspection scheme to be crucial. But that does not answer the question. Is there an urgent governmental interest that this crucial inspection scheme be implemented by warrantless searches?
The majority opinion cites cases which required warrants for fire, health, and housing inspection programs (Camara, supra) and for safety hazards (Marshall, supra). These important programs cannot be distinguished from the motor vehicle inspection in this case which inspected vehicles in a commercial business. The special circumstances involving liquor (Colonnade, supra) and firearms (Biswell, supra) do not exist in this case.
Although the motor vehicle business is a pervasively regulated business and there cannot be any great expectation of privacy in a business so pervasively regulated, there is no urgent governmental interest justifying a warrantless inspection scheme. Since probable cause in the criminal law sense is not required, the warrant requirement imposes no great impediment to the statutory inspection scheme.
I concur with Judge Hendley's opinion. The purpose of this special concurrence is to point out that the inspection scheme will not be impeded by requiring a warrant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1216834/ | 234 Kan. 852 (1984)
678 P.2d 1115
SANDRA J. MEDLING, a/k/a SANDRA J. FULLER, Appellant,
v.
WECOE CREDIT UNION, a Kansas Corporation, Appellee.
No. 55,083
Supreme Court of Kansas.
Opinion filed February 18, 1984.
Michael L. Smith, of Covell, Mellott, Smith & Harvey, of Shawnee Mission, was on the brief for appellant.
Wilson E. Speer and Mary Stuckey Cofran, of Speer, Austin, Holliday & Ruddick, Chatered, of Olathe, were on the brief for appellee.
The opinion of the court was delivered by
McFARLAND, J.:
This action arises from the repossession of an automobile and is brought under the Uniform Consumer Credit Code (UCCC), K.S.A. 16a-1-101 et seq. Plaintiff Sandra J. Medling contends defendant Wecoe Credit Union acted unlawfully in repossessing and selling her 1979 Ford Thunderbird. The credit union counterclaimed for a deficiency judgment. Following a bench trial, the district court held in favor of defendant credit union on plaintiff's petition and on defendant's counterclaim. Plaintiff appeals therefrom.
The first issue is whether there is substantial competent evidence to support the trial court's finding the December, 1979, repossession of the automobile was lawful.
The rules relative to appellate court review, where sufficiency of the evidence is challenged, were summarized in Bell v. Tilton, 234 Kan. 461, 674 P.2d 468 (1983), as follows:
"Where a trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. In re Estate of Phillips, 4 Kan. App. 2d 256, 261, 604 P.2d 747, rev. denied 227 Kan. 927 (1980); and City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976). It is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses, English Village Properties, Inc. v. Boettcher & Lieurance Constr. Co., 7 Kan. App. 2d 307, Syl. ¶ 2, 640 P.2d 1282, rev. denied 231 Kan. 799 (1982), or redetermine questions of fact. Where a trial judge, sitting as a trier of facts, makes a specific finding of fact on apparently conflicting or actually conflicting evidence, an appellate court is concerned only with evidence that supports the trial court's findings and not with evidence that might have supported contrary findings. Steele v. Harrison, 220 Kan. 422, Syl. ¶ 1, 552 P.2d 957 (1976); Arnette *854 v. Arnette, 162 Kan. 677, 681, 178 P.2d 1019 (1947); and In re Estate of Phillips, 4 Kan. App.2d at 261-62. In other words, an appellate court searches the record for the purpose of determining whether there is any substantial competent evidence to support the findings and verdict. If so, the appellate court will not weigh the evidence. Findings of fact determined on conflicting evidence are conclusive. Winn v. Sampson Construction Co., 194 Kan. 136, 142, 398 P.2d 272 (1965). See also Klinzmann v. Beale, 9 Kan. App. 2d 20, Syl. ¶ 10, 670 P.2d 67 (1983).
"Substantial competent evidence has been defined as evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues can reasonably be resolved. Rush v. King Oil Co., 220 Kan. 616, 618, 556 P.2d 431 (1976). Even if findings of the trial judge appear to be inconsistent, the decision of the trial court may be sustained on the basis of those findings which allow the conclusion reached by the court below, if they are supported by the evidence. Landrum v. Taylor, 217 Kan. 113, 117, 535 P.2d 406 (1975); and In re Estate of Phillips, 4 Kan. App.2d at 262." 234 Kan. at 468-69.
Plaintiff challenges the sufficiency of the evidence supporting the trial court's finding the defendant credit union properly declared the consumer credit transaction loan in default on the basis the prospect of payment, performance, or realization of collateral was significantly impaired.
The May 31, 1979, security agreement herein provides, in relevant part:
"EVENTS OF DEFAULT ENTITLING SECURED PARTY (THE CREDIT UNION) TO REPOSSESS. It is agreed by the parties hereto that the following events do reasonably constitute default which entitles the credit union to repossess collateral covered by this Security Agreement.
"(1) Default for ten (10) days for failure to make any payment as required by agreement with the credit union; and failure of the debtor to cure the default within twenty (20) days following the mailing of Notice of Consumers Right to Cure Default of Required Payment in the form and manner required by law;
"(2) Subsequent defaults of any required payment.
"(3) Significant impairment of the prospect of payment by the Debtor;
"(4) Significant impairment of the prospect of performance by the Debtor of any of the agreements herein;
"(5) Significant impairment of the realization of collateral by the Debtor by any of the following acts or omissions:
"(a) Failure of the Debtor to fulfill any of his agreements provided for herein;
"(b) Any warranty, representation or statement concerning the collateral made or furnished to the credit union by or on behalf of the Debtor which proves to have been false in any material respect when made or furnished;
"(c) Loss, theft, substantial damage, destruction, sale or encumbrance to or of any collateral, or the making of any levy seizure attachment thereof or thereon;
"(d) Death, insolvency, business failure, appointment of a receiver for any part of the property of assignment for the benefit of creditors by, or the commencement of any proceedings under any bankruptcy or insolvency laws by or against Debtor or any guarantor, co-maker, endorser or surety for or with Debtor.
*855 "REPOSSESSION AND OTHER REMEDIES. Upon any such default, or any other significant impairment of collateral not herein described, the credit union may declare all obligations secured hereby immediately due and payable and shall have the remedies of a secured party under the law of this state.
"The Credit Union shall have the right to remove the collateral described herein from the premises without legal process and the borrowing member hereby waives and releases the credit union from and of any and all claims in connection therewith are [sic] rights therefrom, and the borrowing member further agrees upon the request of the credit union to assemble the collateral, and make it available to the credit union at a place designated by the credit union and reasonably convenient to both parties.
....
"The parties to this agreement expressly agree that this transaction is subject to the provisions of Kansas law known as the Uniform Consumer Credit Code and specifically designated as K.S.A. 16a-1-101 through 16a-9-102 inclusive." (Emphasis supplied.)
K.S.A. 16a-5-109 statutorily defines and limits default for consumer credit transactions under the UCCC as follows:
"An agreement of the parties to a consumer credit transaction with respect to default on the part of the consumer is enforceable only to the extent that
"(1) the consumer fails to make a payment as required by agreement; or
"(2) the prospect of payment, performance, or realization of collateral is significantly impaired; the burden of establishing the prospect of significant impairment is on the creditor." (Emphasis supplied.)
See generally New Topic Ser. Am.Jur.2d, Consumer Protection § 314; Annot., Construction and Effect of the Uniform Consumer Credit Code, 86 A.L.R. 3d 317.
The parties agree plaintiff was current on her payments at the time default was declared and the repossession occurred in December, 1979. The trial court found the prospect of payment, performance or realization of collateral was significantly impaired and that repossession was therefore lawful pursuant to K.S.A. 16a-5-109(2).
The facts supporting such finding are as follows. On May 31, 1979, plaintiff (then Sandra J. Fuller) obtained a consumer credit loan for $6,500.00 from defendant credit union. The loan was for the purchase of a 1979 Ford Thunderbird automobile. The loan was secured by a security agreement which listed the Thunderbird as collateral along with a 1974 pickup truck. Ronald L. Fuller, plaintiff's then husband, was a cosigner of the security agreement. The purchase of the Thunderbird increased plaintiff's existing indebtedness at the credit union to $12,440.50. *856 Interest was 12 percent per annum. Monthly payments were increased to $327.60 commencing June 30, 1979.
In May, 1979, Sandra Medling was employed by Western Electric Company at its plant in Johnson County, Kansas. The employees of this plant had established Wecoe Credit Union for their use. The credit union was owned by the employees of Western Electric in Johnson County, not by the company. There were approximately five hundred employees who had access to the credit union. Additionally, employee family members could use the credit union. One of the loan features of the credit union was employees could pay off their debts to the credit union by automatic payroll deductions. Plaintiff's $327.60 monthly payments were to be paid to the credit union through this automatic payroll deduction scheme.
In August, 1979, plaintiff and Ronald Fuller were divorced. A month later, September, 1979, plaintiff married Victor F. Medling. On November 27, 1979, plaintiff went to the credit union and visited with Mr. Max Erath, President of Wecoe. Plaintiff advised Mr. Erath she would be terminating her employment with Western Electric on January 4, 1980, and would then be moving to Michigan. Plaintiff further advised Mr. Erath she should be receiving an $8,000.00 tax refund and she would apply all of this to her debt. Plaintiff also wrote out her new address for Mr. Erath in Michigan as follows:
"Sandra Medling 268-6211
7619 Monrovia Lane
Shawnee, Kansas 66216
% Arn Haynes
200 Canter Lane
Holly, Michigan"
Mr. Erath's notes of the conversation additionally reflected:
"11-27-79 am
Ext.
Sandra Fuller 6102
Payment 327.60 Loan Bal. 11209.67
Leaving date 1-4-80
Plans to apply approx. $8,000 before
Leaving.
Who has 79 Ford She has
" " 74 Chev PU He has"
*857 Instead of terminating her employment as of January 4, 1980, plaintiff quit her Western Electric job immediately after the November 27, 1979, conversation with Mr. Erath. Upon learning plaintiff was no longer employed by Western Electric, Mr. Erath telephoned plaintiff on December 3, 1979. Plaintiff advised Mr. Erath she would come in to discuss her loan the same day but did not appear. The following day Mr. Erath again telephoned plaintiff who advised him she would be in to discuss her loan the same day. She did not appear. This same scenario occurred on December 5 and 7, 1979. Meanwhile Mr. Erath's attempts to check out the Michigan address were unsuccessful. Additionally, there were questions relative to whether the cosigner (plaintiff's ex-husband, Ronald L. Fuller) was still employed and whether he continued to be a Kansas resident.
By December 7, 1979, although plaintiff was current on her loan payments, concern at the credit union over the loan was deepening. Among the factors causing anxiety to the credit union were:
1. Inability to get plaintiff to come in and discuss her loan, despite the four attempts.
2. Inability to get plaintiff to clarify her statements regarding a possible move to Michigan.
3. As of then, unsuccessful attempts to check out the Michigan address plaintiff had given the credit union in writing on November 27, 1979.
4. Status of cosigner's employment and whether he was still in Kansas.
5. Knowledge plaintiff was now unemployed.
6. As plaintiff had quit her employment at Western Electric, the credit union no longer enjoyed payment by automatic payroll deductions.
7. A growing fear plaintiff was about to leave Kansas with the 1979 Thunderbird which was the principal collateral securing the credit union's loan.
8. The amount of the loan was at the upper limits of the credit union's loaning policy.
The executive committee of defendant credit union conferred relative to the loan and concluded the prospect for payment, performance or realization of the collateral was significantly impaired and the Thunderbird should be repossessed. On the *858 night of December 9/10, 1979, repossession occurred peaceably, but without consent.
Although not necessary to the issue before us, the following events occurred subsequent to the December, 1979, repossession and should be stated in order to understand fully this lawsuit. Plaintiff contacted the credit union shortly after the repossession in order to secure return of the Thunderbird. The credit union rejected plaintiff's new husband, Victor F. Medling, as a cosigner, but accepted plaintiff's father, Floyd H. Bonham, as cosigner. The automobile was returned to plaintiff. Thereafter a long history of nonpayment and payment by insufficient fund checks unfolded. Ultimately, the credit union filed a replevin action and, upon securing a judgment therefor, the Thunderbird was turned over to defendant on February 23, 1981, and was subsequently sold.
Defendant credit union had the burden of proof under 16a-5-109(2) to establish the prospect of payment, performance, or realization of collateral was significantly impaired at the time of repossession. Plaintiff does not challenge the trial court's determination the credit union had the burden of proving "significant impairment" by the preponderance of the evidence. As stated in McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 667 P.2d 289 (1983):
"[T]he general rule [is] that the `burden of proof on any point is upon the party asserting it....' In re Estate of Wright, 170 Kan. 600, 604, 228 P.2d 911 (1951). Thus the defendant would have the burden to plead and prove his claims. Since the standard in all but a few specifically excepted civil cases is a preponderance of the evidence, the defendant would have the burden to prove his claims were more probably true than not." 233 Kan. at 773.
Plaintiff denies receiving the telephone calls from Mr. Erath on December 3, 4, 5 and 7, 1979, and relies heavily on this denial in contending the credit union failed to meet its burden of proof. In so doing, plaintiff improperly asks this court, on appellate review, to weigh the evidence. See Bell v. Tilton, 234 Kan. at 468.
It is undisputed that on November 27, 1979, plaintiff: (1) advised the credit union she was going to quit her job at Western Electric on January 4, 1980; (2) in fact, quit her job on November 27, 1979; and (3) was going to move to Michigan taking the automobile to an address which the credit union was unable to verify. Additionally, the trial court found that plaintiff was contacted *859 by the credit union on December 3, 4, 5 and 7, 1979, for the purpose of having her come to the credit union to explain the obvious inconsistencies between plaintiff's stated plans and her actual conduct. On each occasion plaintiff promised to come to the credit union shortly thereafter but did not appear. Plaintiff had been divorced from the cosigner of the loan subsequent to its execution. The cosigner was not an employee of Western Electric, and the cosigner was "apparently not very reliable."
We conclude the findings of the trial court relative to this issue are supported by substantial competent evidence including the trial court's conclusion the credit union was entitled to declare a default and repossess the automobile on the basis the prospect of payment, performance, or realization of the collateral was significantly impaired. K.S.A. 16a-5-109(2).
The second issue is whether the trial court erred in not holding the repossession was unlawful for failure to give prior notice of default pursuant to K.S.A. 16a-5-110.
K.S.A. 16a-5-110 provides:
"(UCCC) Notice of consumer's right to cure. (1) After a consumer has been in default for ten (10) days for failure to make a required payment in a consumer credit transaction payable in installments, a creditor may give the consumer the notice described in this section. A creditor gives notice to the consumer under this section when he delivers the notice to the consumer or delivers or mails the notice to the address of the consumer's residence (subsection (6) of section 16a-1-201).
"(2) The notice shall be in writing and shall conspicuously state: The name, address, and telephone number of the creditor to which payment is to be made, a brief description of the credit transaction, the consumer's right to cure the default, and the amount of payment and date by which payment must be made to cure the default. A notice in substantially the following form complies with this section:
_____________________________________________________
(Name, address, and telephone number of creditor)
_____________________________________________________
(Account number, if any)
_____________________________________________________
(Brief description of credit transaction)
____________________ is the LAST DAY FOR PAYMENT
(Date)
____________________ is the AMOUNT NOW DUE
(Amount)
"You are late in making your payment(s). If you pay the AMOUNT NOW DUE (above) by the LAST DAY FOR PAYMENT (above), you may continue with the contract as though you were not late. If you do not pay by this date, we may exercise our rights under the law.
"If you are late again in making your payments, we may exercise our rights *860 without sending you another notice like this one. If you have questions, write or telephone the creditor promptly." (Emphasis supplied.)
The Kansas comment following 16a-5-110 states:
"This section, giving the consumer an opportunity to cure a default, is new to Kansas law. It works this way: If a consumer misses an installment payment due on April 10, the creditor must wait until April 20, at which point he may send to the consumer a written notice indicating the default and the amount due. The `last day for payment' would be shown as May 10, the end of the cure period as provided in 16a-5-111. A notice in substantially the same form as provided in this section will suffice. The philosophy of this section, and the next, is to give the consumer a fair opportunity to bring his payments current before acceleration, repossession, or suit. This notice form applies only in the case of a missed installment; there is no such requirement when the default involves a `substantial' impairment of the prospect for payment or realization on the collateral. [See 16a-5-109]. On the other hand, it should be obvious that the missing of an installment by itself is insufficient to constitute a `significant impairment.'" (Emphasis supplied.)
The specific language of the statute and the Kansas Comment following the statute show there is no requirement of notice prior to repossession where the default is predicated upon substantial impairment of collateral pursuant to 16a-5-109(2) as opposed to failing to make an installment payment under 16a-5-109(1).
There are reasons why no notice is required in default for the prospect of substantial impairment situations. Where default occurs under 16a-5-109(2) the prospects of a continuing relationship between the creditor and the debtor is endangered, so such default is not subject to cure. Miller & Warren, 1974 Uniform Consumer Credit Code, 23 Kan. L. Rev. 619, 646, n. 255 (1975). When default is not subject to cure there is no need to give notice. As one commentator has noted, it is important to observe from the statutory language of 16a-5-110, notice is only relevant when installment default is involved. Murray, Summary Repossession, Replevin, and Foreclosure of Security Interests, 46 J.K.B.A. 93, 95 (1977).
"Equally important is the fact that the type of default contemplated involves only the failure to pay a required installment. Thus, if the debtor is in default for having allowed the insurance coverage on his secured automobile to lapse (and assuming that such a default satisfies the creditor's burden under the UCCC of demonstrating that the prospect of payment, performance or realization upon its collateral is significantly impaired), no notice of right to cure is required." 46 J.K.B.A. at 95. (Emphasis supplied.)
The security agreement herein provided repossession could *861 be had without prior notice. As previously noted, 16a-5-110 does not require notice in this type of default and hence the agreement of the parties was not in violation of the UCCC. We conclude this issue is without merit.
For her third issue plaintiff contends the trial court erroneously considered her post-repossession nonpayment conduct in concluding the December, 1979, repossession was lawful. While the trial court discussed the post-repossession facts, it specifically stated that in determining the lawfulness of the repossession it did not "have to look at the post-repossession facts to arrive at that decision." We find no reversible error relative to this issue.
The first three issues heretofore decided all relate to the December, 1979, repossession of the automobile. The fourth issue relates to the sale of the automobile after it was delivered to the credit union in February, 1981, following a successful replevin action. The fourth issue may be stated as follows: Did the trial court err in finding the April, 1981, sale of the replevined automobile was commercially reasonable and, as a result thereof, err in entering a deficiency judgment against plaintiff?
K.S.A. 16a-5-103(1) provides:
"(1) This section applies to a deficiency on a consumer credit sale of goods or services and on a consumer loan in which the lender is subject to defenses arising from sales (section 16a-3-405); a consumer is not liable for a deficiency unless the creditor has disposed of the goods in good faith and in a commercially reasonable manner." (Emphasis supplied.)
Creditor misbehavior in failing to sell the collateral in good faith and in a commercially reasonable manner is an absolute bar to a deficiency judgment under K.S.A. 16a-5-103(1) of the UCCC, but is not an absolute bar to a deficiency judgment under the Uniform Commercial Code (UCC), K.S.A. 84-1-101 et seq. The distinction was discussed in Westgate State Bank v. Clark, 231 Kan. 81, 642 P.2d 961 (1982), as follows:
"We have considered these two lines of cases and have concluded that the Kansas courts should distinguish between consumer transactions under the UCCC and nonconsumer transactions under the UCC. In consumer transactions, where there is creditor misbehavior such as failure to sell in a commercially reasonable manner, a claim for a deficiency judgment is absolutely barred. K.S.A. 16a-5-103 specifically so provides. When, however, the debtor is a commercial entity, the Kansas courts should use the rebuttable presumption approach. It cannot be denied that the more sophisticated debtor is in a better position to *862 grapple fairly with the creditor as to whether the sale was commercially reasonable or whether the unpaid balance of the debt exceeds the fair market value of the collateral. Furthermore, since the legislature did not see fit to include in the UCC, K.S.A. 84-1-101 et seq., an express provision barring absolutely a deficiency judgment in cases of creditor misbehavior, the courts should hesitate to adopt such a rule. We further are impressed by the philosophy of the UCC which emphasizes good faith and reasonableness on the part of the parties with a view of avoiding penalty damages.
"To summarize, we hold as follows: Where a secured creditor sells the collateral in other than a commercially reasonable manner, the secured party is not absolutely barred from recovering a deficiency judgment from the debtor as a matter of law. In an action brought by a secured creditor for a deficiency judgment after a sale of the collateral in other than a commercially reasonable manner, there is a rebuttable presumption that the value of the collateral was equal to the unpaid balance of the debt and the burden of showing otherwise is on the secured creditor. The debtor is entitled to have the trier of fact calculate the damages which he suffered as a result of the unreasonable conduct and to have that amount set off against the amount the creditor would otherwise be entitled to recover." 231 Kan. at 90.
What is a commercially reasonable sale under the Uniform Consumer Credit Code? While the concept of commercially reasonable disposition of repossessed collateral under the Uniform Commercial Code has been widely considered, e.g., Westgate State Bank v. Clark, 231 Kan. 81; Hall v. Owen Co. State Bank et al., 175 Ind. App. 150, 370 N.E.2d 918 (1977), 7 A.L.R. 4th 285; Clark, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 4.8 (1980); White & Summers, Uniform Commercial Code § 26-11 (2d ed. 1980); Comment, Uniform Commercial Code: Deficiency Judgments in a Commercially Unreasonable Setting, 22 Washburn L.J. 160 (1982); Note, Uniform Commercial Code: Aspects of a Commercially Reasonable Sale of Respossessed Property, 19 Washburn L.J. 123 (1979); Comment, Commercial Reasonableness Under the Uniform Commercial Code, 33 Tenn. L. Rev. 211 (1966); and Annot., What is "Commercially Reasonable" Disposition of Collateral Required by UCC § 9-504(3), 7 A.L.R. 4th 308, there is a dearth of information specifically relating to commercially reasonable disposition under the Uniform Consumer Credit Code.
Kansas Comment 1 of 16a-5-103 states:
"Where there has been a default with respect to a secured consumer credit transaction, the rights of the creditor and debtor are controlled by part 5 (Default) of UCC article 9 (K.S.A. 84-9-501, et seq.), except to the extent that such rights are changed by this act (see K.S.A. 84-9-203)."
*863 As the Kansas Comment reveals, in consumer credit transactions involving default, the Kansas Uniform Consumer Credit Code governs. However, when the UCCC is silent on consumer default, then the UCC provisions on default (K.S.A. 84-9-501 et seq.) are to be applied. Consequently, as the UCCC does not define what is a commercially reasonable disposition of repossessed collateral in a consumer credit transaction, courts may refer to UCC decisions in determining what is a commercially reasonable disposition of collateral.
In Westgate State Bank v. Clark, 231 Kan. 81, this court considered commercially reasonable disposition under the UCC. In Westgate we held:
"Where a secured creditor brings an action for a deficiency judgment after sale of the collateral, the burden of proof as to the commercial reasonableness of the sale is on the plaintiff creditor."
"Whether or not a sale of collateral by a secured creditor was conducted in a commercially reasonable manner is a question of fact to be determined by the trier of fact from a consideration of all relevant factors in the particular case." Syl. ¶¶ 4 and 5.
In Westgate a number of factors which might be relevant were discussed. Following the list of factors we stated:
"The above list of suggested factors is not intended to be exclusive and should not prevent a court from considering other relevant factors in a particular case.
"As noted heretofore, it is the philosophy of the UCC that the debtor and the secured creditor, in their dealings, should act toward each other in good faith and in a reasonable manner. In every case, that should be the ultimate test to be applied by a trial court in determining the issue of commercial reasonableness. Since the issue of commercial reasonableness is usually one of fact, the decision of the trial court will be sustained on appeal when there is substantial, competent evidence to support its findings." 231 Kan. at 95.
We see no legitimate reason why the Westgate rationale should not be applied to determining whether or not a sale of collateral was commercially reasonable under the UCCC.
The activities of defendant credit union relative to the sale of the Thunderbird may be summarized as follows. Defendant regained possession of the automobile in late February, 1981. An official of the credit union testified the automobile was dirty when received and he, personally, cleaned the vehicle, but was unable to remove a grease spot on the front seat. It would have cost $35.00 to $40.00 to have the automobile professionally *864 cleaned. There was no evidence that professional cleaning would have significantly increased the value of the vehicle.
Before offering the automobile for sale the credit union committee consulted the National Auto Research publication "Black Book" for April-May, 1981. The relative values for financing, wholesale and retail were established at $3,965.00, $4,375.00 and $5,075.00. The credit union considered the possibility of consigning the car to a dealer for sale but rejected consignment because it would cost approximately $400.00. The consignment cost, if the credit union had opted for this sale method, would have been taxed to plaintiff. The credit union also considered the possibility of public advertising but eventually decided to sell the 1979 Thunderbird through bid solicitations from Western Electric employees and family members. One of the factors in this determination was Western Electric policy precluded commercial selling to the public on company property.
The car was offered for sale to approximately five hundred Western Electric employees and their families by posting on bulletin boards at the Western Electric plant notice of sale and request for bids on the car. The bid notices were posted for two weeks, during which time the motor vehicle was available for inspection in the Western Electric parking lot. Copies of the notice of sale were sent to all parties on the financing note. Approximately six bids were received. The highest bid was $3,800.00. The credit union considered all bids too low and rejected them.
After the aborted attempt to sell the motor vehicle by a request for bids from Western Electric employees and family members, Mr. Schweiger, an official of the credit union, contacted two local Ford dealerships to solicit bids from them. Both dealerships, Schlozman Ford and Shawnee Mission Ford, indicated the market for 1979 Thunderbirds was sluggish. The softness in the market for Thunderbirds was apparently due to their perception by the public as "gas-guzzlers," and the public was then interested in fuel-efficient automobiles.
Schlozman Ford declined to submit a bid on the Thunderbird. At the time Schlozman Ford had two Thunderbirds on its lot and had been having difficulty selling them. Schlozman Ford was not interested in acquiring a third Thunderbird. After considerable coaxing by the credit union, Shawnee Mission Ford submitted a *865 bid of $4,200.00. On March 24, 1981, the credit union advised plaintiff it had rejected all bids as too low.
The credit union decided to make one last attempt at requesting bids from Western Electric employees and family members and repeated its prior procedure of posting notices on Western Electric bulletin boards requesting bids. Unlike the earlier occasion, however, the credit union set a minimum bid of $4,200.00 the bid which had been submitted by Shawnee Mission Ford.
The second request for bids proved more successful. A bid of $4,606.00 was received four hundred dollars higher than Shawnee Mission Ford was willing to pay. The $4,606.00 bid was accepted. The proceeds of the sale were applied to plaintiff's debt, which then totaled $10,683.59. After deducting costs of the sale, a deficiency balance of $6,978.60, plus interest from April 10, 1981, was established. The credit union advised plaintiff of the sale, the resulting deficiency, and of her redemption rights.
Plaintiff contends the credit union should have advertised the Thunderbird to the general public. Plaintiff produced a car dealer, Mr. Hoffman, a sales manager for Olathe Ford, who testified the suggested retail price of the vehicle was $6,000.00 to $6,250.00 during the applicable time period.
In holding the sale was in good faith and commercially reasonable, the trial court stated:
"The Court feels that the sale of the vehicle although it could have been done possibly better with more in the way of advertising marginally is a commercially reasonable sale. The Court is not an expert in the values of vehicles, however, the Court did have testimony for it that a dealer would try to pay slightly less than the amount of money that the Credit Union got for the vehicle. The Credit Union also by summing it in this way did not have to pay additional charges for its sale which is something that a car dealer writes into the price that he sells the vehicle. This is a credit union who is repossessing it. Mrs. Medling [plaintiff] had been a longtime member of the Credit Union. She has I think at least constructive notice as to how things work at the Credit Union and it's up to the Credit Union to do the best they can in selling these vehicles but they don't have to do everything that a car dealer should do as long as the price that they get is reasonable. Now, there is a dispute as to what is the exact reasonable cost and the price of the car and the Court wasn't helped a whole lot by the welter of the different figures by black, red and whatever other color books are used by the various dealers. We do know that at the time of the eventual sale of this vehicle two dealerships were contacted. One of them considered the Thunderbird not an attractive item at all and refused even to put in a low bid of $3,800 or whatever on the vehicle, just wasn't interested at all, and the other dealership after some prodding and in an effort by the Credit Union to put in a bid of $4,200 which would have been *866 substantially lower than Mr. Hoffman said he would have been willing to pay but, of course, at that time I don't know if he had a dealership then but he didn't see the vehicle and he did not place any bid at that time. So, we are rather looking retrospectively back on this and I think all things considered the sale was commercially reasonable. The price was given on the car was on the low side but not so low as to raise suspicion that it was sold at a loss or sold for any reasons reason other than to obtain as much money as possible to decrease the amount that was still owed."
We conclude the findings of the trial court that the sale of the automobile was made in good faith and was commercially reasonable are supported by substantial competent evidence and, accordingly, they will not be disturbed upon appeal. Based thereon, we further conclude the trial court did not err in entering a deficiency judgment against plaintiff on the counterclaim of defendant credit union.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2510305/ | 101 F. Supp. 2d 332 (2000)
UNITED STATES of America, Respondent,
v.
Ronald Edward SMITH, Petitioner.
No. Civ.A. 99-1688.
United States District Court, W.D. Pennsylvania.
May 30, 2000.
*333 *334 W. Penn Hackney, Federal Public Defender's Office, Pittsburgh, PA, Ronald Edward Smith, pro se, FCI Cumberland, Cumberland, MD, for Ronald Edward Smith, plaintiff.
MEMORANDUM OPINION
LEE, District Judge.
Background
Before the Court is defendant Ronald Edward Smith's pro se (i) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Document No. 199 at Criminal No. 94-222) (hereafter, "section 2255 motion to vacate"). After careful consideration of the section 2255 motion to vacate, with memorandum of law in support, the government's response and memorandum in opposition thereto, and defendant's reply to the government's response, the Court will grant petitioner's motion in part and deny it in part.[1]
This case requires navigation of the labyrinth found at the conjunction of the various statutory provisions and United States Sentencing Guidelines regarding concurrent versus consecutive state and federal sentences, credit for time spent in incarceration, commencement of sentence and the authority of courts versus the Bureau of Prisons ("BOP") regarding the correct computation of defendant's sentence. The BOP concluded that defendant should not get any credit for time he spent serving state sentences in state custody even though the state court judges expressly made their sentences concurrent to this Court's previously imposed federal sentence, and even though the state offenses for which he received his state sentences were treated as relevant conduct by the Government and the probation office in arriving at an appropriate federal sentence. In effect, then, the BOP treated petitioner's federal 84 month sentence as running consecutive to his state sentence, which means petitioner will be released several years beyond the date he expected to be released in light of the state judges making their sentence concurrent to this Court's sentence.
Facts
The relevant facts set forth in the section 2255 motion to vacate are essentially *335 undisputed, and are summarized in the following chronology of events:
April 27, 1994]. Date specified in Count II of ten count federal indictment for petitioner's possession with intent to distribute 7.7 grams of crack cocaine. The conspiracy to distribute crack cocaine charged in Count I of the Indictment was alleged to have taken place between April, 1994, and August 18, 1994. (Petitioner was named as a defendant only at Counts I and II.)
May 5, 1994]. Arrested by City of Pittsburgh police officers on state charges of possession of 7 grams of crack cocaine with intent to distribute. Released on bond. (Evidence of this incident was admitted in federal prosecution as prior criminal conduct pursuant to F.R.E. 404(b)).
October 18, 1994]. Federal indictment issued.
December 2, 1994] Arrested by City of Pittsburgh police officers on state charges of possession of 1.9 grams of crack cocaine, aggravated assault and resisting arrest. Defendant not released on bond.
December 8, 1994]. Federal indictment unsealed.
December 14, 1994]. Taken into federal custody pursuant to writ of habeas corpus ad prosequendum (according to Presentence Investigation Report, or "PSI").
April 25, 1995]. Jury verdict returned; petitioner was convicted at Count I of the indictment for conspiracy to distribute crack cocaine between April and August, 1994, along with his two co-defendants, and acquitted at Count II of possession with intent to distribute on April 27, 1994.
July 14, 1995]. Sentenced by this Court to 84 months imprisonment; judgment order states defendant is to be committed to BOP.
August 29, 1995]. According to BOP printouts attached to petitioner's section 2255 motion to vacate, petitioner returned to state custody this day. BOP gives petitioner credit on federal sentence for time period between December 14, 1995, and August 29, 1995.
August 30, 1995]. Court of Common Pleas of Allegheny County, Judge Terrence O'Brien, sentences petitioner to 2-4 years imprisonment concurrent to federal sentence on the charges stemming from the May 5, 1994, incident.
March 7, 1996]. Court of Common Pleas of Allegheny County, Judge Walter Little, sentences petitioner to 2-5 years imprisonment concurrent to both the federal and previously imposed state sentences, on the charges stemming from the December 2, 1994, incident.
March 12, 1996]. Transported to state facility to serve state sentences, which initially rejected petitioner because state officials believed he was still in federal custody (according to petitioner, but undisputed by Government).
March 13, 1996]. Accepted into state facility to serve state sentences.
October 18, 1996]. Conviction and judgment of sentence affirmed on direct appeal by the United States Court of Appeals for the Third Circuit.
November 23, 1998]. After being paroled by state officials on the state sentence, petitioner transported to FCI- Cumberland, Maryland, at which point he learns, for the first time, that the BOP will not give him credit for the time served in state prison on the state sentence, and that his 84 months federal sentence is deemed to commence as of this date.
*336 February 8, 1999]. Petitioner filed Request for Administrative Remedy with BOP/FCI- Cumberland. Warden Mark Henry denied relief initially in March, 1999, and his decision was affirmed on administrative appeal.
August 10, 1999]. Petitioner's habeas corpus application pursuant to 28 U.S.C. § 2241 is denied by United States District Court for the District of Maryland.
March 29, 2000]. District Court's denial of relief on petitioner's § 2241 petition is affirmed per curiam by the United States Court of Appeals for the Fourth Circuit. Smith v. Henry, 2000 WL 364206 (4th Cir. 2000).
On October 18, 1999, petitioner, Ronald Edward Smith, filed his section 2255 motion to vacate, "based on the failure of the petitioner to receive a lawful sentence, and effective assistance of counsel. The defendant Prays for a reduction of Sentence or Order that the Federal Sentence be made to run concurrent with the State sentences the defendant has already served." Petition, Prayer for Relief. Petitioner also requests appointment of counsel, discovery, and an evidentiary hearing should immediate relief not be granted, and any other relief that this Court deems just and appropriate under the circumstances.
In summary, petitioner's well drafted and researched section 2255 motion to vacate asserts that the BOP has failed to give him proper credit for time spent in state custody on state sentences that were imposed after this Court entered its sentence, where the state court judges specifically directed that the state sentences were to be concurrent both to each other and to the federal sentence. When he was released from state custody and transported to FCI- Cumberland, Maryland, to begin serving his federal sentence on November 23, 1998, petitioner learned, for the first time, that the BOP was not crediting him with federal custody for the time spent in a state facility serving his state sentences. If petitioner is correct, the BOP has "added" up to several years to his federal sentence (although it appears it has given him credit for the period between December 14, 1994, and August 29, 1995).[2]
The section 2255 motion to vacate argues both that the BOP abused its discretion in failing to properly credit him for the time served in state custody, and that this Court's sentence of July 14, 1995, was illegal because it failed to specify that it should be served concurrently with the yet to be imposed state sentences, and that counsel was ineffective for failing to request the Court to run his federal sentence concurrent to those not yet imposed state sentences or otherwise take steps to ensure that his time spent in state custody on the subsequently imposed state sentences would count toward his 84 months' imprisonment in federal custody.
Specifically, petitioner raises the following four issues:
A. Ground one: Ineffective Assistance of Counsel
Defense Counsel failed to ensure that the defendant would be properly sentence (sic) pursuant to 5G1.3 of the Guidelines. Had defense counsel properly moved the District Court under 5G1.3, the Court could have tailored the sentence to a term of undischarged imprisonment. The District Court could have also Order (sic) the Federal Sentence to be fully concurrent with the state sentence if the state judges had also made their sentences to run concurrently with the federal sentence. The failure of the defense counsel to take any steps to ensure a fully or partially concurrent sentence was ineffective assistance of counsel. See Memorandum in Support pp. 9-12
*337 B. Ground two: The Consecutive Sentence Is A Fundamental Miscarriage Of Justice
The resulting consecutive sentence which frustrates the intentions of the State of Pennsylvania Courts was only achieved by the Government through the back door. The Government requested a more lengthy sentence in the Federal Court, however, (sic) the Honorable Judge Donald L. (sic) Lee denied the request. The State of Pennsylvania prosecutor also requested more lengthy and consecutive sentences in State Court, but both Judges specifically denied that request. However, the Government has resorted to using the United States Bureau of Prisons to achieve the same unlawful end. This is a miscarriage of justice and allows the court to invoke a proper judicial remedy. See Memorandum In Support at p. 12
C. Ground three: BOP Did Not Give Full And Fair Consideration For Concurrent Sentence
The BOP had the authority to issue a Nunc Pro Tunc application of the sentencing Order which would have allowed the BOP to give full credit for all of the time spent in state custody. When the defendant first requested such a hearing and order, the prison staff would not make the request. It was only ... through the administrative remedy process that the BOP stated that it had refused to issue an Order. The BOP did not give a full and fair hearing of the issue as required by law. This Court has the power to exercise its supervisory powers to compel lawful compliance. See Memorandum In Support at PP. 13-16
D. Ground four: District may Utilize Rule 36 of the Federal Rules of Appellate (sic; petitioner relies on Rule 36 of the Federal Rules of Criminal Procedure) Procedure To Correct Error And Reflect Original Intention Of Sentencing Court.
The defendant believes it is the understanding of all parties that if the defendant received a concurrent sentence by the state court that he would serve a concurrent sentence. However, the defendant has never seen a Judgement and Commitment order and does not know if the intentions of the Judge was written on the order. As well, the defendant asks this Court to reissue a Judgement and Commitment Order to reflect the federal sentence would be concurrent with the served state sentence.
Section 2255 Motion to Vacate, at 5-6.
Initially, the Court agrees with petitioner and the government that his section 2255 motion to vacate is timely under 18 U.S.C. § 2255(4), which provides that the one-year period of limitation shall run from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Because petitioner could not have learned until, at the earliest, November 23, 1998, that the BOP did not consider his federal sentence to have been running concurrently to the state sentences, his section 2255 motion to vacate was timely filed on October 18, 1999.
The Court also observes preliminarily that, on or about March 30, 2000, this Court gave petitioner Miller notice pursuant to the directives of the United States Court of Appeals for the Third Circuit in United States v. Miller, 197 F.3d 644 (3d Cir.1999), which, inter alia, required petitioner to file a statement of intent with the Clerk of Court setting forth his intention to have his motion ruled upon as filed, or to withdraw his motion and resubmit one all-inclusive section 2255 petition. On April 20, 2000, petitioner filed his statement of intent declaring his intention to have this Court rule upon his section 2255 motion to vacate as filed, in exercising his Miller options. (Document No. 205 at Criminal No. 94-222.)
In its response to petitioner's section 2255 motion to vacate, the government *338 agrees with petitioner that "The ruling of the BOP effectively negated the impact of the state court judges' ordering of their sentences to run concurrently with the federal sentence ... [and that] the defendant may well have a viable argument...." Government's Response, p. 2 at 2. Nevertheless, the government maintains that petitioner's real gripe is with the BOP and its calculation of sentence, and that any remedy for a miscalculation by the BOP must be pursuant to 28 U.S.C. § 2241 addressed to the district court of petitioner's place of confinement, which is the United States District Court for the District of Maryland, after petitioner had exhausted his administrative remedies within the BOP.
The government also argues that counsel could not have been ineffective for failing to request a concurrent sentence pursuant to section 5G1.3 of the United States Sentencing Guidelines, because that section only applies to a defendant who is already subject to an undischarged term of imprisonment and that counsel cannot be ineffective for failing to raise a frivolous argument. The government further asserts there was no miscarriage of justice that would qualify petitioner for relief in this Court, and that Rule 36 of the Federal Rules of Criminal Procedure is inapplicable as that section only permits the Court to correct a clerical or technical error in a commitment order.
BOP's Calculation of Sentence
Petitioner's second and third grounds for relief pose direct challenges to the calculation by the BOP of his federal sentence, including when that sentence commenced and the BOP's refusal to issue a nunc pro tunc designation of the state facilities as the place for serving his federal sentence, which would in effect have made his state sentences concurrent to the federal sentence. The exclusive remedy for challenging the BOP's calculation of a federal sentence is a habeas corpus petition filed pursuant to 28 U.S.C. § 2241, directed to the district court in the United States District Court wherein the petitioner is incarcerated, and naming the warden of the federal facility as a respondent. E.G., Yi v. Maugans, 24 F.3d 500, 507 (3d Cir.1994); Rios v. Wiley, 201 F.3d 257 (3d Cir.2000); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir.1990); Nwanze v. Hahn, 97 F. Supp. 2d 665, ___-___, 2000 WL 623235, *3-*4 (W.D.Pa.2000) (habeas corpus is exclusive remedy for a prisoner who challenges the fact or duration of his confinement and seeks as his relief immediate or speedier release from confinement); Chambers v. Holland, 920 F. Supp. 618 (M.D.Pa.1996). There is no question that the BOP has discretion to designate the place of a prisoner's imprisonment, 18 U.S.C. § 3621(b), and that the BOP may exercise that discretion to designate, nunc pro tunc, a state facility where petitioner has served a state sentence as the place of confinement for purposes of serving his or her federal sentence. Barden, 921 F.2d at 478, 482-84.
Barden presented a remarkably similar scenario to petitioner's. Mr. Barden was serving a twenty-year term of imprisonment for bank robbery, and the government took the position he had almost seventeen years to go because his federal term could not begin until February 12, 1987, the day Barden arrived at a federal facility to commence service of his federal sentence. Before his arrival in federal custody, Barden already had served more than ten years on state sentences that the state sentencing court expressly indicated should run concurrently with his federal sentence. The Court of Appeals described the problem:
Barden says the federal authorities made a mistake in failing to designate the state prison as the place of confinement for his federal sentence. This designation, he argues, is a necessary prerequisite to carrying out the intention of the state sentencing court that his state sentence be served concurrently with his federal sentence. Barden claims that the federal authorities can and should *339 correct their mistake by a nunc pro tunc exercise of their power to designate the place of confinement, and that he has a right to have an administrative determination of this issue because he would be eligible for an earlier release if the state prison were designated nunc pro tunc as a place for him to serve his federal sentence. The federal government insists that all that matters is the date Barden was turned over from state to federal custody and that the intention of the state court that Barden's state sentence run concurrently with his federal sentence is immaterial.
921 F.2d at 477-78 (footnotes omitted).
Rejecting the government's position, the Court of Appeals for the Third Circuit held:
Whether Barden's actions while under confinement in both the Pennsylvania and federal prisons, the intent of the state judge that Barden's state sentence be served concurrently with the earlier federal sentence and any other broadly relevant characteristics or circumstances entitle Barden to relief in the form of a nunc pro tunc designation of the state prison as a place of federal confinement, even if the failure so to designate it was the result of mistake or inadvertence, is a matter within the Bureau's sound discretion. We hold only that the Bureau has power to grant relief, that Barden is entitled to have the Bureau examine his case and that habeas as authorized by 18 U.S.C.A. § 2241 is an appropriate judicial means of compelling that examination. A redesignation of the state prison where he spent more than ten years as a place of federal confinement plainly would affect the absolute term of his confinement as well as his right to parole. ...
Under the statute and the Bureau's regulations, Barden is entitled to "fair treatment" on his application for nunc pro tunc designation of the state facility as a place of confinement for his federal sentence. See 28 C.F.R. 541.12 (1989) ("[Inmates] have the right to expect that as a human being [they] will be treated respectfully, impartially and fairly by all personnel.").
Id., at 483.
Petitioner's situation would seem to present a compelling case for the nunc pro tunc designation of the state facility wherein he served his state sentences (that were expressly directed by the state judges to be served concurrent to his federal sentence) as the place of service of his federal sentence, which would thus make his federal sentence truly concurrent to the state sentences. The BOP's failure to exercise its discretion to consider such a nunc pro tunc designation, or its abuse of discretion in making its decision, are within the jurisdiction of a federal court to review pursuant to section 2241. Barden; Rios. However, the only federal court with jurisdiction to review the BOP's refusal to make that designation is the United States District Court for the District of Maryland under 28 U.S.C. § 2241.
Moreover, petitioner alleges in his section 2255 motion to vacate that, in fact, he has petitioned the BOP to make the nunc pro tunc designation, and following the BOP's denial of that request and administrative appeals, he filed a habeas corpus petition pursuant to 18 U.S.C. § 2241 in the District of Maryland. The district court denied the section 2241 petition, apparently without requiring a response from the respondent, Kevin Henry, the Warden at FCI- Cumberland. The United States Court of Appeals for the Fourth Circuit has affirmed that denial by per curium opinion on March 29, 2000. Smith v. Henry, 210 F.3d 362 (4th Cir.2000) (Table).
Thus, even if this Court were inclined to find an abuse of discretion in the BOP's refusal to designate the state facility nunc pro tunc as the place for serving petitioner's federal sentence, it has no jurisdiction over a section 2241 petition, which is exclusively in the jurisdiction of the *340 federal district court in the place of confinement. Moreover, the law of the case doctrine prevents this Court from revisiting petitioner's direct challenge to the BOP's calculation of his sentence pursuant to section 2241 where that issue has been decided adversely by the Maryland district and appellate courts. Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988); P.I.R.G. New Jersey v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.1997).
Accordingly, because this Court has no jurisdiction to address petitioner's second and third grounds for relief directly challenging the BOP's calculation of his sentence, and because the District Court for the District of Maryland and the United States Court of Appeals for the Fourth Circuit have decided the issue adversely to petitioner pursuant to his section 2241 habeas corpus petition, this Court must deny the relief requested on these two grounds with prejudice.
Federal Rules of Criminal Procedure Rule 36
Petitioner's fourth ground for relief is predicated upon Fed.R.Crim.P. 36, which provides: "Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders." Petitioner believes this Court's oversight or omission was its failure to have the sentence and commitment order reflect this Court's intention, if it was its intention, to impose the federal sentence concurrent to the yet to be imposed state sentences. There are two impediments to considering granting relief under Rule 36.
First, changing the sentence and commitment order to run the federal sentence concurrent to the state sentences (now imposed and served) would clearly be a substantive modification of sentence and not the sort of technical, clerical mistake contemplated by the rule. See, e.g. United States v. Werber, 51 F.3d 342 (2d Cir.1995) (district court lacked jurisdiction under Rule 36 to modify a sentence to reflect its unexpressed intention at sentencing to depart in order to ensure defendants received credit for time spent imprisoned on state sentences); United States v. Guevremont, 829 F.2d 423, 426 (3d Cir.1987) (a Rule 36 error "must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature."); United States v. DeLeo, 644 F.2d 300, 301-02 (3d Cir.1981) ("Rule 36 applies only to clerical mistakes and errors in the record; it does not authorize substantive alteration of a final judgment.").
Second, as is explained in the next section, it was not this Court's intention to sentence defendant concurrently to his not yet imposed state sentences. Had the Court considered the issue, it would have concluded, as it does now, that it had no authority to make the sentence either concurrent or consecutive to non-existent state sentences which may or may not have come into being, but the fact is the Court simply did not consider the issue one way or the other. Thus, even if the Court could use Rule 36 to alter the judgment order to reflect an unstated intention, to impose a "concurrent" modifier at this stage would go far beyond correcting a clerical oversight or omission, it would be altering the judgment of sentence as imposed and as it was in fact intended to be imposed at the time, rightly or wrongly.
Petitioner is not entitled to relief under Rule 36.
Ineffective Assistance of Counsel
Petitioner's first ground for relief states a cognizable claim under section 2255, based upon the purported ineffective assistance of his trial counsel in failing to take some steps to ensure that he would not be in the predicament he is in today. In this claim, petitioner in fact challenges the validity of the Court's sentence in light *341 of counsel's alleged constitutionally deficient and ineffective representation, and not the calculation of the BOP. Such ineffective assistance of counsel at sentencing claims are properly brought before the sentencing court pursuant to section 2255. See, e.g., United States v. Mannino, 212 F.3d 835, 839 (3d Cir.2000); United States v. Headley, 923 F.2d 1079, 1083-84 (3d Cir.1991).
Section 2255, 28 U.S.C. § 2255 provides, in relevant part:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
Whether to conduct a hearing is within the sound discretion of the district court. United States v. Day, 969 F.2d 39, 41 (3d Cir.1992), quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989), cert. denied 500 U.S. 954, 111 S. Ct. 2262, 114 L. Ed. 2d 714 (1991). In exercising that discretion, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief." Day, 969 F.2d at 41-42 (citation omitted). See also Rules Governing Section 2255 Proceedings, Rules 4 and 8. The court should view the factual allegations in the light most favorable to the petitioner. Government of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir.1994) (district court erred in failing to conduct evidentiary hearing on petitioner's non-frivolous allegations of ineffective assistance of counsel) (subsequent history omitted).
For petitioner to establish counsel was ineffective, he must show counsel's performance (i) was in fact deficient and (ii) that the deficient performance so prejudiced the defense as to raise doubt to the accuracy of the outcome of the trial [or the sentence]; i.e., petitioner must demonstrate a reasonable probability that, but for counsel's deficiency, the outcome of the trial [or sentence] would have been different. Strickland v. Washington, 466 U.S. 668, 687, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel's conduct presumptively "falls within the wide range of reasonable professional assistance," and the defendant "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689-90, 104 S. Ct. 2052 (citation omitted). On the other hand, the mere fact that counsel's challenged performance or tactic can be called "strategic" in the sense it was deliberate, does not answer the dispositive question of whether that decision or tactic fell within the wide range of "reasonable professional assistance." Davidson v. United States, 951 F. Supp. 555, 558 (W.D.Pa.1996), quoting Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1431-32 (3d Cir.), cert. denied 519 U.S. 1020, 117 S. Ct. 538, 136 L. Ed. 2d 423 (1996). "Reasonable trial strategy must, by definition, be reasonable." Davidson, 951 F.Supp. at 558.
Counsel's strategy must be judged by a standard of reasonableness based on the prevailing norms of the legal profession. Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir.1996) (Strickland standards for claims of ineffective assistance of counsel *342 unchanged under Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214). Ineffective assistance of counsel will not be found simply because, with the assistance of hindsight, the reviewing court disagrees with counsel's strategy. Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir.1997).
In the context of a section 2255 petition for collateral relief, the Court of Appeals for the Third Circuit has offered the following guidance:
The ... test for determining whether a hearing should be held on an ineffectiveness claim is slightly altered by the Strickland holding. Our analysis of allegations of ineffectiveness of counsel breaks down into two parts. First, we must determine whether the district court considered as true all appellant's nonfrivolous factual claims. This step requires that we review whether the district court properly found certain allegations frivolous. Second, we must determine whether, on the existing record, those claims that are nonfrivolous conclusively fail to show ineffective assistance of counsel. To evaluate claims under this second step, we must turn to both prongs of the Strickland test. If a nonfrivolous claim clearly fails to demonstrate either deficiency of counsel's performance or prejudice to the defendant, then the claim does not merit a hearing. If, on the other hand, a claim, when taken as true and evaluated in light of the existing record, states a colorable claim for relief under Strickland, then further factual development in the form of a hearing is required. That is, if a nonfrivolous claim does not conclusively fail either prong of the Strickland test, then a hearing must be held. Thus, the district court must employ the Strickland analysis at least once, and may have to employ it twice first, as a threshold analysis of all claims on a limited record, and then again only on colorable claims after full factual development of those claims.
United States v. Dawson, 857 F.2d 923, 927-28 (3d Cir.1988).
The principal argument advanced by petitioner in his ineffective assistance of counsel claim is that defense counsel failed to secure a federal sentence specifically made to run concurrent to any sentence to be imposed on his pending state charges, which clearly were related to his federal indictment. More broadly, he argues that counsel was ineffective in failing to take some step or pursue some procedure that would have avoided the consequences he faces today, i.e., a federal sentence running consecutive to the already served state sentence, thus drastically increasing his total period of confinement.
The relevant statutory provision, 18 U.S.C. § 3584, states as follows:
Multiple sentences of imprisonment
(a) Imposition of concurrent or consecutive terms. If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
(b) Factors to be considered in imposing concurrent or consecutive terms. The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).
*343 (c) Treatment of multiple sentence as an aggregate. Multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.
18 U.S.C. § 3584 (emphasis added).
Section 5G1.3 of the United States Sentencing Guidelines, entitled "Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment" (emphasis added), provides in turn:
(a) If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.
(c) (Policy Statement) In any other case, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.
USSG § 5G1.3 (emphasis added).
By their plain terms, these provisions apply where a defendant is already subject to a prior undischarged term of imprisonment, and do not appear to embrace the situation where a defendant is simply incarcerated in a state facility while awaiting trial on state charges. This makes eminent sense, because there is no way to tell whether a pending state charge is going to result in acquittal, conviction, guilty plea, nol pros, or some other disposition, or what the state sentence will be if the defendant pleads guilty or is convicted, and attempting to achieve a just and fair total time of confinement ("a reasonable punishment for the instant offense", USSG § 5G1.3(c)) by sequential reference to a non-existing state sentence is certainly problematic, to say the least.
Nevertheless, there is an even split amongst the circuits that have considered the issue of whether the sentencing court may make the federal sentence run either concurrently or consecutively to a yet to be imposed but anticipated state sentence. The Court of Appeals for the Seventh Circuit most recently addressed the issue in Romandine v. United States, 206 F.3d 731 (7th Cir.2000), collected and reviewed the cases, and decided that a district court has no authority to make a sentence either concurrent or consecutive to a state sentence that has not been imposed. Speaking for the panel, Judge Easterbrook stated:
"[I]f a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively." 18 U.S.C. § 3584(a).... Neither § 3584(a) nor any other statute of which we are aware authorizes a federal judge to declare that his sentence must run consecutively to some sentence that may be imposed in the future.... But sentences may well run consecutively by force of law; indeed, the subject may simply be out of the judge's hands. The final sentence of § 3584(a) reads: "Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." A judge cannot make his sentence concurrent to nonexistent sentences that some other tribunal may or may not impose; thus the sentence is automatically consecutive.
The next judge in line may make service concurrent in practical effect. For *344 example, the state judge could have given Romandine a discount of 10 months on account of his undischarged federal sentence. Likewise the Attorney General could make the federal sentence run concurrently by designating the state prison as a place of federal confinement, so that the clock would start to tick on the federal sentence. "A sentence to a term of imprisonment commences on the date the defendant is received in custody ... [at] the official detention facility at which the sentence is to be served." 18 U.S.C. § 3585(a). All the Attorney General has to do is designate the state prison as "the official detention facility at which the sentence is to be served." See 18 U.S.C. § 3621(b); United States v. Hill, 48 F.3d 228, 234 (7th Cir.1995). By refusing to make this designation, and by instead lodging a detainer with state officials, the Attorney General can ensure consecutive service (although the Attorney General could not prevent the state from releasing its prisoner early because of the state's anticipation that federal time lay ahead). A legal error one way or the other in the exercise of this power could be reviewed under sec. 2241....
Other courts of appeals are divided on the question whether a district court may require its sentence to be served consecutively to a state sentence that will be imposed in the future. See United States v. Brown, 920 F.2d 1212, 1217 (5th Cir.1991) (yes); United States v. Quintero, 157 F.3d 1038 (6th Cir.1998) (no); United States v. Clayton, 927 F.2d 491 (9th Cir.1991) (no); United States v. Williams, 46 F.3d 57 (10th Cir.1995) (yes); United States v. Ballard, 6 F.3d 1502, 1510 (11th Cir.1993) (yes). We join the circuits that answer "no," because sec. 3584(a) allows the district judge to specify the sequence of service only when sentences are imposed at the same time, or the other sentence is "an undischarged term of imprisonment" to which the defendant is "already subject". But the answer does not matter, and the conflict is illusory, for reasons we have given: the final sentence of sec. 3584(a) makes the federal sentence presumptively consecutive in all unprovided-for cases, and the effective decision then is made by the Attorney General (or the state judge) rather than the federal judge.
Romandine, 206 F.3d at 737-38 (emphasis added).
This Court agrees with the reasoning of Romandine, and also that of United States v. Quintero, 157 F.3d 1038 (6th Cir.1998), as being more in keeping with the plain language of the relevant statutory and guidelines provisions, common sense, and with the legislative history that exists. Quintero, 157 F.3d at 1040-41. Qunitero states, in relevant part:
We hold that 18 U.S.C. § 3584(a) does not authorize district courts to order a sentence to be served consecutively to a not-yet-imposed state sentence. To reach our conclusion, we primarily rely on the language of section 3584(a). Section 3584(a) only authorizes district courts to impose concurrent or consecutive sentences if the court either imposes multiple terms of imprisonment on the defendant at the same time or imposes a sentence on a defendant who is "already subject to an undischarged term of imprisonment." 18 U.S.C. § 3584(a).
***
Other circuits have reached the opposite conclusion that section 3584(a) permits a district court to impose a sentence to be served consecutively to a yet to be imposed state sentence. See United States v. Williams, 46 F.3d 57, 58-59 (10th Cir.1995) [additional citations omitted]. The Tenth Circuit, in Williams, relied on the "plain meaning" of the last sentence of section 3584(a), which provides that "[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." *345 See 46 F.3d at 58-59. The Williams court also stated that "[w]e find no language in section 3584(a) prohibiting a district court from ordering that a federal sentence be served consecutively to a state sentence that has not yet been imposed." Id. at 59.
We disagree with the Williams court's reading of the final sentence of section 3584(a). The language neither abrogates the requirement that to run consecutively there be an undischarged sentence or sentences imposed at the same time nor expands a district court's authority; it establishes a default rule that applies if a district court fails to specify whether a sentence should run concurrently or consecutively and either of the initial two conditions are satisfied "multiple terms of imprisonment are imposed on a defendant at the same time, or ... a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment." 18 U.S.C. § 3584(a).
157 F.3d at 1039-40 (footnotes omitted).
The cases in the "Yes" camp are less compelling, although their interpretations of 18 U.S.C. § 3584 and section 5G1.3 of the United States Sentencing Guidelines certainly cannot be said to be unreasonable. On balance, however, this Court adopts the better reasoned decisions of the Seventh and Sixth Circuit Courts of Appeal in Romandine and Qunitero. See also DeLima v. United States, 41 F. Supp. 2d 359, 361 (E.D.N.Y.1999), aff'd 2000 WL 534248 (2d Cir.2000) (district court holding that to determine under USSG § 5G1.3(c) whether to run a sentence concurrent, partially concurrent or consecutive to a yet to be imposed sentence in order to arrive at a "reasonable punishment for the instant offense" "would require attributes this Court lacks, including clairvoyance as to the ultimate outcome of the state charges.")
Although the Court of Appeals for the Third Circuit has not specifically addressed the issue, there are several decisions that strongly indicate it will join the "No" camp. Perhaps most supportive is Barden. As noted, the facts and sequential timing of sentences in Barden were quite similar to Mr. Smith's case. While the Court found that the BOP had the discretion to designate Barden's place of confinement nunc pro tunc as the state institution in which he had been confined on his state sentence (which would in effect give him credit for time spent in state custody on a term of imprisonment as if it had been running concurrent to the federal sentence), the Court also explicitly stated that "the federal sentence, as it now stands, cannot be made to run concurrently with the state sentence," because "the federal sentencing court ... lacks the power to order concurrency on the facts of this case...." Barden, 921 F.2d at 480, 483 (emphasis added). In contrast to the BOP's wide discretion to so designate the place of confinement nunc pro tunc, "the sentencing court not only was unable to order concurrency because it sentenced Barden before the state did but was actually powerless to do so." Id. at 484 (emphasis added), citing Gomori v. Arnold, 533 F.2d 871 (3d Cir.1976). See also United States v. Brannan, 74 F.3d 448, 454 (3d Cir.1996) ("§ 5G1.3 addresses the situation in which a defendant already subject to an undischarged term of imprisonment is being sentenced for another offense."); United States v. Pungitore, 910 F.2d 1084, 1118-19 (3d Cir.1990) (while the district court had the discretion to order the federal sentences to run consecutively to unexpired state sentences even though the state sentence were on appeal in state court, the Court of Appeals recognized that "the imposition of consecutive federal sentences may raise problems when the state sentences have not yet been imposed. ..."); United States v. Dent, 1999 WL 717114 (E.D.Pa.1999) ("To the extent that Petitioner claims that his counsel was ineffective for failing to bring to the Court's attention that the Court had the authority under U.S.S.G. § 5G1.3(c) to run *346 a federal sentence `concurrently to ... [a] prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense,' that claim is without foundation. First, Petitioner was not subject to an undischarged term of imprisonment at the time he was sentenced.").
Because this Court concludes that it has, and had, no authority to apply 18 U.S.C. § 3584(a) or USSG § 5G1.3 to direct that petitioner's federal sentence run concurrent to the two state sentences that were anticipated at the time of sentencing but not yet imposed (in fact, petitioner had not yet pleaded guilty to the two state offenses), petitioner's argument that counsel provided inadequate representation in failing to request the court to run his sentence concurrent to the state sentences must fail, as it is without arguable merit. Counsel cannot be deemed ineffective for failing to raise a non-meritorious issue.
However, this does not end the inquiry, because petitioner states the ineffective assistance of counsel in broader terms ("failure of the defense counsel to take any steps to ensure a fully or partially concurrent sentence was ineffective assistance of counsel"; "Defense counsel failed to appreciate the liability in which the federal sentence would leave his client" if the federal sentence was not ordered to run concurrent to the future state sentences), and because a pro se section 2255 petitioner's pleadings are traditionally viewed quite liberally. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); United States v. Miller, 197 F.3d 644, 646 (3d Cir.1999). So viewed, the question becomes, was there anything reasonably competent and professional counsel could have and should have done to ensure that petitioner's federal sentence would run concurrent or that he would be given credit for time spent in state custody on those anticipated state term of imprisonment? The answer is perhaps so, but we cannot answer that definitively on the record before the Court. Because petitioner states a colorable claim for relief under Strickland, an evidentiary hearing will be necessary, at which petitioner will be represented by appointed counsel.
A couple of plausible steps counsel might have taken come to mind, but quickly are eliminated. The time for commencement of the federal sentence is when the prisoner is actually committed to the custody of the BOP, 18 U.S.C. § 3585(a), and the sentencing court has no authority to "start" the sentence prior to that time. United States v. Pungitore, 910 F.2d 1084, 1118-19 (3d Cir.1990); Chambers v. Holland, 920 F.Supp. at 621. Credit for prior time served in state custody is in the discretion of the BOP pursuant to 18 U.S.C. § 3585(b), United States v. Wilson, 503 U.S. 329, 333-35, 112 S. Ct. 1351, 117 L. Ed. 2d 593 (1992), as discussed above (subject to the court's ability to review the exercise of the BOP's discretion pursuant to 28 U.S.C. § 2241), but the court has authority to "adjust" a federal sentence under United States Sentencing Guidelines § 5G1.3(c) to account for time served in state custody in order to reflect a "reasonable punishment for the instant offense." See, e.g. Rios v. Wiley; United States v. Dorsey. In fact, the district court has authority to make a sort of "departure" pursuant to the methodology set forth in section 5G1.3(c) of the United States Sentencing Guidelines and its application notes, to recognize time already served for another offense. United States v. Brannan, 74 F.3d at 452-53 and n. 6. However, all of these cases interpreting the district court's authority to arrive at an appropriate sentence under section 5G1.3(c) to achieve a reasonable period of confinement for the instant offense involve the situation where the state sentence was imposed before the federal sentence; they do not, therefore, speak to the issue of whether the district court can exercise the discretion afforded in subsection (c) and the application notes where, as here, the federal sentence was first imposed and the state charges had not even been tried or pleaded to completion, let alone to sentencing. *347 This Court's discretion under section 5G1.3(c) to depart from or adjust the sentence could not have been invoked any more than its authority to enter its sentence concurrent to the anticipated but not imposed state sentences.
What counsel might have done, however, since he was aware of the pending state charges, was to request this Court to continue the sentencing hearing until the state charges had been prosecuted to completion and sentences imposed. If such a continuance had been granted, this Court would have had full discretion and ability to run the federal sentence concurrent to the state sentence pursuant to USSG § 5G1.3(b). Counsel might also have requested this Court to make a non-binding recommendation to the BOP to run the federal sentence concurrent to any state sentence eventually imposed on the pending state charges. Although this would be a non-binding recommendation under the circumstances, it is this Court's understanding, as petitioner points out, that the BOP recognizes there is authority to support the ability of a district court to impose a sentence concurrent to a yet to be imposed state sentence, and that it will follow such a recommendation by making the necessary nunc pro tunc designation after the prisoner has been delivered to federal custody. Bureau of Prisons Sentence Computation Manual CCCA Program Statement 5880.28.
While the prejudice to petitioner is rather apparent (as the government candidly concedes), this Court can draw no conclusions, at this stage of the proceedings, about defense counsel's "failure" to either request a continuance or request a recommendation of concurrency to the BOP, and does not find that such "failure" necessarily would fall below the prevailing norms of the legal profession. Indeed, the BOP itself considers the interaction of federal and state sentences where the state has primary jurisdiction to be "probably the single most confusing and least understood sentencing issue in the Federal system." BOP Frequently Asked Questions, "How do Federal and State sentences interact when the Federal defendant is under State primary jurisdiction." The Court does find, however, that counsel's performance may have been deficient in this regard, and that petitioner presents a colorable claim under Strickland that cannot be denied without an evidentiary hearing.
The Court further finds that it is appropriate to appoint counsel to represent Mr. Smith at the evidentiary hearing and to negotiate with the Government with an eye toward reaching some amicable resolution of the issue.
An appropriate order will be entered.
NOTES
[1] Defendant also filed a Motion for Equitable Relief and Petitioner Initiated Summary Judgment (Document No. 201) based upon the government's failure to respond to his section 2255 petition in timely fashion. The Government filed its response to the section 2255 immediately after defendant filed his motion for summary judgment, but three weeks after its response was due by order of court. Defendant's reply to the government's response appears to have abandoned the motion for equitable relief and summary judgment, and in any event, it is not this Court's practice in civil or collateral criminal cases to grant "summary judgment" solely on the basis of a single untimely response of a duration of several weeks. The Motion for Equitable Relief and Petitioner Initiated Summary Judgment will therefore be denied.
[2] It is not necessary to `do the math' at this point, given the Court's resolution of the issues raised in the section 2255 motion to vacate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2149787/ | 116 Cal. App. 3d 311 (1981)
WAYNE K. PUGH, Plaintiff and Appellant,
v.
SEE'S CANDIES, INC., et al., Defendants and Respondents.
Docket No. 45149.
Court of Appeals of California, First District, Division One.
February 27, 1981.
*315 COUNSEL
Joseph P. Stretch for Plaintiff and Appellant.
Donald F. Farbstein, Farbstein, Brown & Pillsbury, Phillip J. Smith and Smith, Clancy, Wright & Laws for Defendants and Respondents.
OPINION
GRODIN, J.
After 32 years of employment with See's Candies, Inc., in which he worked his way up the corporate ladder from dishwasher to vice president in charge of production and member of the board of directors, Wayne Pugh was fired. Asserting that he had been fired in breach of contract and for reasons which offend public policy he sued his former employer seeking compensatory and punitive damages for wrongful termination, and joined as a defendant a labor organization which, he alleged, had conspired in or induced the wrongful conduct. The case went to trial before a jury, and upon conclusion of the plaintiff's case-in-chief the trial court granted defendants' motions for nonsuit, and this appeal followed.
Standard of Review on Nonsuit
Under established principles, a nonsuit may be granted "`only where, disregarding conflicting evidence on behalf of the defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.'" (O'Keefe v. South End Rowing Club (1966) 64 Cal. 2d 729, 733 [51 Cal. Rptr. 534, 414 P.2d 830, 16 A.L.R. 3d 1]; see also Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal. 3d 741, 745 [87 Cal. Rptr. 376, 470 P.2d 360].) Applying these principles, we conclude that the trial court erred in granting the nonsuit motions, and reverse.
SUMMARY OF THE EVIDENCE
We summarize the evidence presented to the jury. The defendant employer is in the business of manufacturing fresh candy at its plants in *316 Los Angeles and South San Francisco and marketing the candy through its own retail outlets. The South San Francisco plant is operated under the name See's Candies, Inc., a wholly owned subsidiary corporation of See's Candy Shops, Inc., which operates the Los Angeles plant as well. The stock of See's Candy Shops, Inc., was held by members of the See family until 1972, when it was sold to Blue Chip Stamps Corporation. For convenience, the designation "See's" will be used to refer to both companies.
Pugh began working for See's at its Bay Area plant (then in San Francisco) in January 1941 washing pots and pans. From there he was promoted to candy maker, and held that position until the early part of 1942, when he entered the Air Corps. Upon his discharge in 1946 he returned to See's and his former position. After a year he was promoted to the position of production manager in charge of personnel, ordering raw materials, and supervising the production of candy. When, in 1950, See's moved into a larger plant in San Francisco, Pugh had responsibility for laying out the design of the plant, taking bids, and assisting in the construction. While working at this plant, Pugh sought to increase his value to the company by taking three years of night classes in plant layout, economics, and business law. When See's moved its San Francisco plant to its present location in South San Francisco in 1957, Pugh was given responsibilities for the new location similar to those which he undertook in 1950. By this time See's business and its number of production employees had increased substantially, and a new position of assistant production manager was created under Pugh's supervision.
In 1971 Pugh was again promoted, this time as vice president in charge of production and was placed upon the board of directors of See's northern California subsidiary, "in recognition of his accomplishments." In 1972 he received a gold watch from See's "in appreciation of 31 years of loyal service."
In May 1973 Pugh travelled with Charles Huggins, then president of See's, and their respective families to Europe on a business trip to visit candy manufacturers and to inspect new equipment. Mr. Huggins returned in early June to attend a board of director's meeting while Pugh and his family remained in Europe on a planned vacation.
Upon Pugh's return from Europe on Sunday, June 25, 1973, he received a message directing him to fly to Los Angeles the next day and meet with Mr. Huggins.
*317 Pugh went to Los Angeles expecting to be told of another promotion. The preceding Christmas season had been the most successful in See's history, the Valentine's Day holiday of 1973 set a new sales record for See's, and the March 1973 edition of See's Newsletter, containing two pictures of Pugh, carried congratulations on the increased production.
Instead, upon Pugh's arrival at Mr. Huggin's office, the latter said, "Wayne, come in and sit down. We might as well get right to the point. I have decided your services are no longer required by See's Candies. Read this and sign it." Huggins handed him a letter confirming his termination and directing him to remove that day "only personal papers and possessions from your office," but "absolutely no records, formulas or other material"; and to turn in and account for "all keys, credit cards, et cetera." The letter advised that Pugh would receive unpaid salary, bonuses and accrued vacation through that date, and the full amount of his profit sharing account, but "No severance pay will be granted." Finally, Pugh was directed "not to visit or contact Production Department employees while they are on the job."
The letter contained no reason for Pugh's termination. When Pugh asked Huggins for a reason, he was told only that he should "look deep within [him]self" to find the answer, that "Things were said by people in the trade that have come back to us." Pugh's termination was subsequently announced to the industry in a letter which, again, stated no reasons.
When Pugh first went to work for See's, Ed Peck, then president and general manager, frequently told him: "if you are loyal to [See's] and do a good job, your future is secure." Laurance See, who became president of the company in 1951 and served in that capacity until his death in 1969, had a practice of not terminating administrative personnel except for good cause, and this practice was carried on by his brother, Charles B. See, who succeeded Laurance as president.
During the entire period of his employment, there had been no formal or written criticism of Pugh's work.[1] No complaints were ever *318 raised at the annual meetings which preceded each holiday season, and he was never denied a raise or bonus. He received no notice that there was a problem which needed correction, nor any warning that any disciplinary action was being contemplated.
Pugh's theory as to why he was terminated relates to a contract which See's at that time had with the defendant union.[2] Prior to 1971, the union represented employees of See's as well as employees of certain other candy manufacturers in a multiemployer bargaining unit, and there existed a collective bargaining agreement between the union and an employer association representing those manufacturers. In addition, there existed for many years prior to 1971 a supplemental agreement between the union and See's which contained provisions applicable to See's only.
In 1968 the supplemental agreement contained a new rate classification which permitted See's to pay its seasonal employees at a lower rate. At a company meeting prior to the 1968 negotiations, Pugh had objected to the proposed new seasonal classification on the grounds that it might make it more difficult to recruit seasonal workers, and create unrest among See's regular seasonal workers who had worked previously for other manufacturers at higher rates. Huggins overruled Pugh's objection and (unknown to Pugh) recommended his termination for "lack of cooperation" as to which Pugh's objection formed "part of the reason." His recommendation was not accepted.
The 1968 association and supplemental agreements expired in 1971. Thereafter See's negotiated with the union separately, and not as a part of any employer association.
The 1971 agreement expired in 1973. In April of that year, Huggins asked Pugh to be part of the negotiating team for the new union contract. Pugh responded that he would like to, but he was bothered by the possibility that See's had a "sweetheart contract" with the union. In response, someone banged on the table and said, "`You don't know what the hell you are talking about.'" Pugh said, "Well, I think I know what I am talking about. I don't know whether you have a sweetheart contract, but I am telling you if you do, I don't want to be involved because they are immoral, illegal and not in the best interests of my employees." *319 At the trial, Pugh explained that to him a "sweetheart contract" was "a contract whereby one employer would get an unfair competitive advantage over a competitor by getting a lower wage rate, would be one version of it." He also felt, he testified, that "if they in fact had a sweetheart contract that it wouldn't be fair to my female employees to be getting less money than someone would get working in the same industry under the same manager."
The union's alleged participation in Pugh's termination was in the form of a statement attributed to Mr. Button (the individual who succeeded Pugh as production manager) at a negotiating meeting between the company and the union in June 1973. According to one witness, Mr. Button stated at the commencement of the meeting, "Now we've taken care of Mr. Pugh. What are you going to do for us."
DISCUSSION
A. Historical Background.
The law of the employment relationship has been, and perhaps still is, in the process of continuing evolution. The old law of master and servant, which held sway through the 18th century and to some extent beyond, viewed the relationship as primarily one of status rather than of contract. While agreement gave rise to the relationship and might establish certain of its terms, it was "custom and public policy, not the will of the parties, [which] defined the implicit framework of mutual rights and obligations." (Selznick, Law, Society and Industrial Justice (1969) p. 123.)
The essence of the relationship as so defined drew its contours from the model of the household in which, typically, the servant worked, the master had general authority to discipline the servant, and it was the servant's duty to obey. (Id., at pp. 124-125.) At the same time, the master had certain responsibilities for the servant's general welfare. (Id., at p. 128.) The relationship was thus in a sense paternalistic. And it was not terminable at will; rather, there existed a presumption (in the absence of contrary agreement) that employment was for a period of one year. (Id., at p. 125.)
With the industrial revolution in the 19th century the law of master and servant underwent a gradual remodeling, primarily at the hands of *320 the judiciary. Primary emphasis came to be placed, through contract doctrine, upon the freedom of the parties to define their own relationship. "The emphasis shifted from obligation to freedom of choice." (Id., at p. 131.) The terms of the contract were to be sought in voluntary agreement, express or implied, the employee being presumed to have assented to the rules and working conditions established by the employer. (Ibid.)
In light of the generally superior bargaining power of the employer, "the employment contract became [by the end of the nineteenth century] a very special sort of contract in large part a device for guaranteeing to management unilateral power to make rules and exercise discretion." (Ibid.) And management's unilateral power extended, generally, to the term of the relationship as well. The new emphasis brought with it a gradual weakening of the traditional presumption that a general hiring (i.e., one without a specific term) was for a year, and its replacement by the converse presumption that "a general or indefinite hiring is prima facie a hiring at will." (Wood, A Treatise on the Law of Master and Servant (1877) § 134, fn. 49.)[3] In California, this presumption is reflected in Labor Code section 2922, which provides: "An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month."
The recognized inequality in bargaining power between employer and individual employee undergirded the rise of the labor unions and the institutionalization of collective bargaining.[4] And through collective bargaining, unions have placed limitations on the employer's unilateral right of termination. Under most union contracts, employees can only be dismissed for "just cause," and disputes over what constitutes cause for dismissal are typically decided by arbitrators chosen by the parties.[5]*321 Collective bargaining agreements, however, cover only a small fraction of the nation's work force,[6] and employees who either do not or (as in the case of managerial employees such as Mr. Pugh) cannot form unions[7] are left without that protection.
(1) In recent years, there have been established by statute a variety of limitations upon the employer's power of dismissal. Employers are precluded, for example, from terminating employees for a variety of reasons, including union membership or activities, race, sex, age or political affiliation.[8] Legislatures in this country have so far refrained, however, from adopting statutes, such as those which exist in most other industrialized countries,[9] which would provide more generalized protection to employees against unjust dismissal. And while public employees may enjoy job security through civil service rules[10] and due process,[11] the legal principles which give rise to these protections are not directly applicable to employees in private industry.[12]
Even apart from statute or constitutional protection, however, the employer's right to terminate employees is not absolute. "The mere fact that a contract is terminable at will does not give the employer the absolute right to terminate it in all cases." (Patterson v. Philco Corp. *322 (1967) 252 Cal. App. 2d 63, 65 [60 Cal. Rptr. 110].) Two relevant limiting principles have developed, one of them based upon public policy and the other upon traditional contract doctrine. The first limitation precludes dismissal "when an employer's discharge of an employee violates fundamental principles of public policy" (Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d 167, 170 [164 Cal. Rptr. 839, 610 P.2d 1330]), the second when the discharge is contrary to the terms of the agreement, express or implied. Appellant relies upon both these principles in contesting his termination here.
B. Public Policy Limitation.
Appellant contends that his evidence established a prima facie case of retaliatory termination for reasons which offend public policy in three respects. First, he contends that the evidence tended to show he was terminated because he refused to participate in negotiations for a union contract which would have violated state and federal public policy against restraint of trade; second, that he was terminated because he refused to participate in negotiations for a union contract which violated declared public policy against discrimination based on sex; and third, that he was terminated for reasons which violate the state's policy favoring the exercise of a company director's duty of inquiry.
The first contention finds doctrinal support in the Supreme Court decision in Tameny v. Atlantic Richfield Co., supra. (2) In Tameny, the court held "that an employer's authority over its employee does not include the right to demand that the employee commit a criminal act to further its interests, and an employer may not coerce compliance with such unlawful directions by discharging an employee who refuses to follow such an order." (27 Cal.3d at p. 178.) A pleading which alleged that the plaintiff was terminated because he refused to participate in activity which would have constituted a violation of the antitrust laws was held to state a cause of action.
Appellant's evidence, however, fails to support application of that doctrine. The trial court, in granting the nonsuit, reasoned that there was no evidence that appellant in fact refused or indicated he would refuse to participate in negotiations for a new agreement, or that the terms for which he would be expected to negotiate would pose the same legal problems as those which appellant claimed to inhere in the prior agreement. Assuming, however, that there was sufficient evidence from *323 which the jury could have filled those evidentiary gaps by inference, there is a more fundamental flaw in appellant's argument. The premise upon which he sought to establish, through expert testimony, that the prior supplemental agreement violated the antitrust laws, was that its existence was kept secret from the other employer members of the multiemployer bargaining unit. Assuming, arguendo, that the premise had legal merit, the factual predicate for that premise is missing. Appellant established only that one employer was unaware of the existence of the supplemental agreement, and that employer was not a member of the multi-employer group. Moreover, by 1973, when appellant was asked to be a member of the negotiating committee, the 1968 agreement had long since expired, and See's was no longer bargaining through the association. Thus, the trial court did not err in granting nonsuit on that theory.
Appellant's second theory is that the supplemental agreement in effect at the time of his termination discriminated against women in violation of the state's Fair Employment Practices Act (now Fair Employment and Housing Act, Gov. Code, § 12900 et seq.), by allowing payment of a lower wage rate to seasonal employees who were, in fact, women. In support of that theory, an attorney with the California Fair Employment Practices Commission testified that on the basis of certain factual assumptions the contract as applied would violate state law.
Assuming, for purposes of analysis, that there was sufficient evidence to establish the prima facie illegality of the supplemental agreement under the Fair Employment Practices Act, appellant's theory again fails for lack of evidentiary support. In addition to the gaps noted in connection with appellant's antitrust theory, there was no evidence that appellant ever communicated to See's his belief or opinion that the existing contract discriminated on the basis of sex.[13]
*324 Appellant's third theory is premised on section 309, subdivision (a) of the Corporations Code, which requires of corporate directors that they perform the duties of their office "with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances." (Italics added.) The evidence does not reasonably support a determination, however, that appellant was engaged as a director in the process of inquiry. (Cf. Becket v. Welton Becket & Associates (1974) 39 Cal. App. 3d 815 [114 Cal. Rptr. 531].)[14]
We conclude that appellant did not establish a prima facie and cognizable case of wrongful termination based upon the public policy theories which he advanced.
C. Contract Limitations.
(3) The presumption that an employment contract is intended to be terminable at will is subject, like any presumption, to contrary evidence. This may take the form of an agreement, express or implied, that the relationship will continue for some fixed period of time.[15] Or, and of greater relevance here, it may take the form of an agreement that the employment relationship will continue indefinitely, pending the occurrence *325 of some event such as the employer's dissatisfaction with the employee's services or the existence of some "cause" for termination.[16] Sometimes this latter type of agreement is characterized as a contract for "permanent" employment,[17] but that characterization may be misleading. In one of the earliest California cases on this subject, the Supreme Court interpreted a contract for permanent employment as meaning "that plaintiffs' employment ... was to continue indefinitely, and until one or the other of the parties wish, for some good reason, to sever the relation." (Lord v. Goldberg, supra, 81 Cal. 596, 601-602, italics added.)
(4) A contract which limits the power of the employer with respect to the reasons for termination is no less enforcible because it places no equivalent limits upon the power of the employee to quit his employment. "If the requirement of consideration is met, there is no additional requirement of ... equivalence in the values exchanged, or `mutuality of obligation.'" (Rest.2d Contracts, § 81 (Tent. Draft No. 2, 1965); 1A Corbin on Contracts (1963) § 152, pp. 13-17; see Chinn v. China Nat. Aviation Corp. (1955) 138 Cal. App. 2d 98 [291 P.2d 91]; Toussaint v. Blue Cross & Blue Shield of Mich. (1980) 408 Mich. 579, 600 [292 N.W.2d 880, 885].)
Moreover, while it has sometimes been said that a promise for continued employment subject to limitation upon the employer's power of termination must be supported by some "independent consideration," i.e., consideration other than the services to be rendered,[18] such a rule is contrary to the general contract principle that courts should not inquire into the adequacy of consideration. (See Calamari & Perillo, Contracts (2d ed. 1977) § 4-3, p. 136.) "A single and undivided consideration may be bargained for and given as the agreed equivalent of one promise or of two promises or of many promises." (1 Corbin on Contracts (1963) § 125, pp. 535-536.) Thus there is no analytical reason why an employee's promise to render services, or his actual rendition of services over time, may not support an employer's promise both to pay a particular *326 wage (for example) and to refrain from arbitrary dismissal. (See 1 Corbin on Contracts, op. cit. supra, § 125, p. 536, fn. 68; 1A Corbin on Contracts, op. cit. supra, § 152, pp. 13-17.)
The most likely explanation for the "independent consideration" requirement is that it serves an evidentiary function: it is more probable that the parties intended a continuing relationship, with limitations upon the employer's dismissal authority, when the employee has provided some benefit to the employer, or suffers some detriment, beyond the usual rendition of service. (See Employment at Will and the Law of Contracts (1973) 23 Buffalo L.Rev. 211, 221-226.) This functional view of "independent consideration" in the employment context has acquired judicial recognition in other states (see Littell v. Evening Star Newspaper Co. (D.C. Cir.1941) 120 F.2d 36, 37; Bussard v. College of Saint Thomas, Inc. (1972) 294 Minn. 215 [200 N.W.2d 155, 161]; Eilen v. Tappin's, Inc. (1951) 16 N.J. Super. 53, 56-68 [83 A.2d 817, 818-819]; cf. Farmer v. Arabian American Oil Co. (2d Cir.1960) 277 F.2d 46 (applying New York law); Stevens v. G.L. Rugo & Sons (1st Cir.1953) 209 F.2d 135 (applying Massachusetts law); Garrett v. American Family Mutual Insurance Co. (Mo. App. 1974) 520 S.W.2d 102, 110-112), and has been accepted in several recent cases by the California courts. "It is fundamental that when construing contracts involving substantial employment rights, courts should avoid mechanical and arbitrary tests if at all possible; employment contracts, like other agreements, should be construed to give effect to the intention of the parties as demonstrated by the language used, the purpose to be accomplished and the circumstances under which the agreement was made. [Citations.] [¶] We embrace the prevailing viewpoint that the general rule [requiring independent consideration] is a rule of construction, not of substance, and that a contract for permanent employment, whether or not it is based upon some consideration other than the employee's services, cannot be terminated at the will of the employer if it contains an express or implied condition to the contrary." (Drzewiecki v. H & R Block, Inc., supra, 24 Cal. App. 3d 695, 703-704, italics added.) (5) Accordingly, "[i]t is settled that contracts of employment in California are terminable only for good cause if either of two conditions exist: (1) the contract was supported by consideration independent of the services to be performed by the employee for his prospective employer; or (2) the parties agreed, expressly or impliedly, that the employee could be terminated only for good cause." (Rabago-Alvarez v. Dart Industries, Inc., supra, 55 Cal. App. 3d 91, 96, italics added. Accord, Cleary v. American Airlines, Inc., supra, 111 Cal. App. 3d 443, 452.)
*327 In determining whether there exists an implied-in-fact promise for some form of continued employment courts have considered a variety of factors in addition to the existence of independent consideration. These have included, for example, the personnel policies or practices of the employer,[19] the employee's longevity of service,[20] actions or communications by the employer reflecting assurances of continued employment,[21] and the practices of the industry in which the employee is engaged.[22]
A related doctrinal development exists in the application to the employment relationship of the "implied-in-law covenant of good faith and fair dealing inherent in every contract." (Tameny v. Atlantic Richfield Co., supra, 27 Cal. 3d 167, 179, fn. 12.) The Supreme Court in Tameny took note of authorities in other jurisdictions which have found an employer's discharge of an at-will employee violative of that covenant,[23] but considered it unnecessary to reach that issue in light of its holding that the pleading stated a cause of action on other grounds. (Ibid.)
*328 Recently one Court of Appeal has had occasion to confront the applicability of that doctrine more directly. In Cleary v. American Airlines, Inc., supra, 111 Cal. App. 3d 443, an employee who had been dismissed for alleged theft after 18 years of allegedly satisfactory service brought suit claiming, among other things, that his dismissal was in violation of published company policy requiring a "fair, impartial and objective hearing" in such matters, and in breach of the covenant of good faith and fair dealing. Holding that the complaint stated a cause of action on these grounds, the court reasoned: "Two factors are of paramount importance in reaching our result.... One is the longevity of service by plaintiff 18 years of apparently satisfactory performance. Termination of employment without legal cause after such a period of time offends the implied-in-law covenant of good faith and fair dealing contained in all contracts, including employment contracts.... [¶] The second factor of considerable significance is the expressed policy of the employer ... set forth in [the] regulation [referred to in the pleadings]. This policy involves the adoption of specific procedures for adjudicating employee disputes such as this one. While the contents of the regulation are not before us, its existence compels the conclusion that this employer had recognized its responsibility to engage in good faith and fair dealing rather than in arbitrary conduct with respect to all of its employees. [¶] In the case at bench, we hold that the longevity of the employee's service, together with the expressed policy of the employer, operate as a form of estoppel, precluding any discharge of such an employee by the employer without good cause." (Id., at pp. 455-456.)
If "[t]ermination of employment without legal cause [after 18 years of service] offends the implied-in-law covenant of good faith and fair dealing contained in all contracts, including employment contracts," as the court said in the above-quoted portion of Cleary, then a fortiori that covenant would provide protection to Pugh, whose employment is nearly twice that duration. Indeed, it seems difficult to defend termination of such a long-time employee arbitrarily, i.e., without some legitimate reason, as compatible with either good faith or fair dealing.[24]
*329 We need not go that far, however.[25] In Cleary the court did not base its holding upon the covenant of good faith and fair dealing alone. Its decision rested also upon the employer's acceptance of responsibility for refraining from arbitrary conduct, as evidenced by its adoption of specific procedures for adjudicating employee grievances. While the court characterized the employer's conduct as constituting "[recognition of] its responsibility to engage in good faith and fair dealing" (111 Cal. App.3d at p. 455), the result is equally explicable in traditional contract terms: the employer's conduct gave rise to an implied promise that it would not act arbitrarily in dealing with its employees.
(6) Here, similarly, there were facts in evidence from which the jury could determine the existence of such an implied promise: the duration of appellant's employment, the commendations and promotions he received, the apparent lack of any direct criticism of his work, the assurances he was given, and the employer's acknowledged policies. While oblique language will not, standing alone, be sufficient to establish agreement (Drzewiecki v. H & R Block, Inc., supra, 24 Cal. App. 3d 695, 703), it is appropriate to consider the totality of the parties' relationship: Agreement may be "`shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances.'" (Marvin v. Marvin (1976) 18 Cal. 3d 660, 678, fn. 16 [134 Cal. Rptr. 815, 557 P.2d 106]; see Note, Implied Contract Rights to Job Security (1974) 26 Stan.L.Rev. 335.) We therefore conclude that it was error to grant respondents' motions for nonsuit as to See's.
Since this litigation may proceed toward yet uncharted waters, we consider it appropriate to provide some guidance as to the questions which the trial court may confront on remand. (7) We have held that appellant has demonstrated a prima facie case of wrongful termination in violation of his contract of employment. The burden of coming forward with evidence as to the reason for appellant's termination now shifts to the employer. Appellant may attack the employer's offered explanation, either on the ground that it is pretextual (and that the real reason is one prohibited by contract or public policy (cf. Bondi v. Jewels by Edwar, Ltd. (1968) 267 Cal. App. 2d 672, 676 [73 Cal. Rptr. 494])), or on the ground that it is insufficient to meet the employer's *330 obligations under contract or applicable legal principles. Appellant bears, however, the ultimate burden of proving that he was terminated wrongfully. (Cleary v. American Airlines, Inc., supra, 111 Cal. App. 3d 443, 456; cf. McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-807 [36 L. Ed. 2d 668, 677-680, 93 S. Ct. 1817].)
By what standard that burden is to be measured will depend, in part, upon what conclusions the jury draws as to the nature of the contract between the parties. The terms "just cause" and "good cause," "as used in a variety of contexts ... have been found to be difficult to define with precision and to be largely relative in their connotation, depending upon the particular circumstances of each case." (R.J. Cardinal Co. v. Ritchie (1963) 218 Cal. App. 2d 124, 144 [32 Cal. Rptr. 545].) Essentially, they connote "a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power." (Id., at p. 145.) Care must be taken, however, not to interfere with the legitimate exercise of managerial discretion.[26] "Good cause" in this context is quite different from the standard applicable in determining the propriety of an employee's termination under a contract for a specified term. (Cf. Lab. Code, § 2924.) And where, as here, the employee occupies a sensitive managerial or confidential position, the employer must of necessity be allowed substantial scope for the exercise of subjective judgment. (See Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith (1980) 93 Harv.L.Rev. 1816, 1840.)
The Case Against the Union.
(8) Evidence as to what appellant's successor told union representatives after his termination ("Now we've taken care of Mr. Pugh. What are you going to do for us?"), while hardly in itself weighty, is nevertheless sufficient in context given principles applicable to nonsuits, to justify an inference that appellant was terminated in response to the union's insistence. A union is privileged to induce a breach of contract between employer and employee in the pursuit of a legitimate labor objective *331 (Imperial Ice Co. v. Rossier (1941) 18 Cal. 2d 33, 35 [112 P.2d 631]; L.A. Pie Bakers Assn. v. Bakery Drivers (1953) 122 Cal. App. 2d 237, 243 [264 P.2d 615]; Lawless v. Brotherhood of Painters (1956) 143 Cal. App. 2d 474, 478 [300 P.2d 159]); alternatively, a union's efforts to cause termination of a supervisory employee for reasons bearing upon his relationship to the union may constitute an unfair labor practice subject to the exclusive jurisdiction of the National Labor Relations Board (29 U.S.C. § 158(b)(1)(B)). At this stage, however, the record is inadequate to support definitive application of either privilege or preemption. We therefore conclude that the judgment of nonsuit was erroneously granted with respect to the union as well.
Reversed.
Racanelli, P.J., and Newsom, J., concurred.
On March 27, 1981, the opinion was modified to read as printed above.
NOTES
[1] Huggins testified that in 1953 there was some personality conflict between Pugh and Huggins' assistant, a Mr. Forrest, on account of which Huggins recommended to Laurance See that Pugh be terminated, but See declined. Huggins again recommended Pugh's termination in 1968, under circumstances to be described in this opinion, and again See declined. It does not appear that Huggins' actions in this regard, or the criticism of Pugh which they implied, were made known to Pugh.
[2] Respondent Baker's Local No. 125 is the successor to Candy Worker's Local No. 158, also named as a defendant. The term "union" will be used to describe the organization as a continuing entity.
[3] See Blumrosen, Workers' Rights Against Employers and Unions: Justice Francis A Judge For Our Season (1970) 24 Rutgers L.Rev. 480, 481. It has been observed that what is sometimes called "Wood's rule" finds dubious support in the authorities upon which the treatise relies. (Note, Implied Contract Rights to Job Security (1974) 26 Stan.L.Rev. 335, 341.)
[4] Congress, in adopting the National Labor Relations Act in 1935 (ch. 372, § 1, 49 Stat. 449) found "inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association." (29 U.S.C. § 151.)
[5] Approximately 95 percent of collective bargaining agreements contain grievance and arbitration provisions, and approximately 80 percent of the agreements specifically require just cause for discharge (see Peck, Unjust Discharges from Employment: A Necessary Change in the Law (1979) 40 Ohio St. L.J. 1, 8, and sources there cited).
[6] Somewhat less than 28 percent of the nation's nonagricultural work force are employed under the terms of a union agreement. (U.S. Bureau of Labor Statistics, Directory of National Unions and Employee Associations (1973) at p. 72.)
[7] See, e.g., NLRB v. Yeshiva University (1980) 444 U.S. 672 [63 L. Ed. 2d 115, 100 S. Ct. 856].
[8] See citations contained in Cleary v. American Airlines, Inc. (1980) 111 Cal. App. 3d 443, 450-451 [168 Cal. Rptr. 722].)
[9] "The United States is one of the few industrial countries that does not provide general legal protection against unjust dismissals." (Summers, Individual Protection Against Unjust Dismissal: Time For A Statute (1976) 62 Va.L.Rev. 481, 508.) Countries which do provide such protection include France, Germany, Great Britain, and Sweden. (Id., at pp. 508-519.)
[10] Over 90 percent of federal civilian employees enjoy civil service protection against "adverse action" by supervisors, and by a "conservative estimate" more than half of state and local governmental employees are so protected. (Peck, Unjust Discharges From Employment: A Necessary Change in the Law, supra, 40 Ohio St. L.J. 1, 8-9.)
[11] Where a public employee's "liberty" or "property" interests are at stake, minimal due process protections of notice and hearing must be afforded. (Perry v. Sindermann (1972) 408 U.S. 593 [33 L. Ed. 2d 570, 92 S. Ct. 2694]; Skelly v. State Personnel Bd. (1975) 15 Cal. 3d 194 [124 Cal. Rptr. 14, 539 P.2d 774].)
[12] For an interesting argument that equal protection or state action principles may require extension of similar protections to employees of "private" employers, see Peck, Unjust Discharges From Employment: A Necessary Change in the Law, supra, 40 Ohio St. L.J. 1, 21-22.
[13] We note that the Fair Employment and Housing Act itself makes it unlawful "For any employer ... to discharge ... or otherwise discriminate against any person because the person has opposed any practices forbidden under this part...." (Gov. Code, § 12940, subd. (e), added by Stats. 1980, ch. 992, § 4, p. 3148.) That act also establishes a procedure for complaints of violation to be filed with the Fair Employment Practices Commission, for investigation by the commission, for written accusation and hearing, and for relief in the form of an order requiring reinstatement with back pay in the event a violation is determined to exist. (Gov. Code, §§ 12960-12971, added by Stats. 1980, ch. 992, § 4, pp. 3155-3158.) (The relevant provisions of the Fair Employment and Housing Act are substantially equivalent to those formerly found in the Fair Employment Practices Act (Lab. Code, §§ 1420, subd. (e) and 1421-1426, repealed by Stats. 1980, ch. 992, § 11, p. 3166).) These procedures were available to appellant, as regards his claim that he was discharged for protesting alleged sex discrimination, and his failure to pursue them arguably constitutes independent grounds for rejecting this aspect of his action against his employer. (Bennett v. Borden, Inc. (1976) 56 Cal. App. 3d 706 [128 Cal. Rptr. 627]; McCluney v. Jos. Schlitz Brewing Co. (E.D.Wis. 1980) 489 F. Supp. 24; but cf. Agarwal v. Johnson (1979) 25 Cal. 3d 932, 954-955 [160 Cal. Rptr. 141, 603 P.2d 58]; Monge v. Beebe Rubber Company (1974) 114 N.H. 130 [316 A.2d 549, 62 A.L.R. 3d 264].) This issue was not raised by the parties, however, and we do not reach it.
[14] Moreover, it appears from the record that appellant was a director only of the northern California subsidiary, and that the board of directors of See's Candy Shops, Inc. ran the company.
It may be that there is a public policy which favors protection of employees against dismissal for voicing concerns, within an enterprise, concerning the legality or morality of enterprise conduct. (Cf. Givhan v. Western Line Consol. School Dist. (1979) 439 U.S. 410 [58 L. Ed. 2d 619, 99 S. Ct. 693]; Geary v. United States Steel Corporation (1974) 456 Pa. 171, 185 [319 A.2d 174, 180] (dis. opn.).) Appellant did not invoke such a theory in the trial court, and our disposition of the case on other grounds makes it unnecessary for us to consider the existence of such a limitation or its possible application to appellant's termination.
[15] E.g., Millsap v. National Funding Corp. (1943) 57 Cal. App. 2d 772, 775 [135 P.2d 407] ("reasonable" period of time, determined to be two years).
[16] E.g., Lord v. Goldberg (1889) 81 Cal. 596, 601-602 [22 P. 1126]; Coats v. General Motors Corp. (1934) 3 Cal. App. 2d 340, 348 [39 P.2d 838]; Millsap v. National Funding Corp., supra, 57 Cal. App. 2d 772, 776; Drzewiecki v. H & R Block, Inc. (1972) 24 Cal. App. 3d 695, 704 [101 Cal. Rptr. 169]; Rabago-Alvarez v. Dart Industries, Inc. (1976) 55 Cal. App. 3d 91, 96 [127 Cal. Rptr. 222]; Cleary v. American Airlines, Inc., supra, 111 Cal. App. 3d 443, 451-453; Patterson v. Philco Corp. (1967) 252 Cal. App. 2d 63, 65 [60 Cal. Rptr. 110].)
[17] E.g. Drzewiecki v. H & R Block, Inc., supra, 24 Cal. App. 3d 695, 704.
[18] E.g., Speegle v. Board of Fire Underwriters (1946) 29 Cal. 2d 34, 39 [172 P.2d 867]; Ruinello v. Murray (1951) 36 Cal. 2d 687, 689 [727 P.2d 251]; Ferreyra v. E. & J. Gallo Winery (1964) 231 Cal. App. 2d 426, 430 [41 Cal. Rptr. 819]; Levy v. Bellmar Enterprises (1966) 241 Cal. App. 2d 686, 690 [50 Cal. Rptr. 842].
[19] E.g., Cleary v. American Airlines, Inc., supra, 111 Cal. App. 3d 443, 455; Greene v. Howard University (D.C. Cir.1969) 412 F.2d 1128, 1133. See also Hepp v. Lockheed-California Co. (1978) 86 Cal. App. 3d 714 [150 Cal. Rptr. 408].
[20] Cleary v. American Airlines, Inc., supra, 111 Cal. App. 3d 443, 455; see also Perry v. Sindermann, supra, 408 U.S. 593, 602 [33 L. Ed. 2d 570, 580] ("A teacher like the respondent, who held his position for a number of years, might be able to show from the circumstances of this service and from other relevant facts that he has a legitimate claim of entitlement to job tenure"). Indeed, if "independent consideration" were required to support a promise of job security, an employee's lengthy past service would appear to be sufficient. "The employee, in providing long-term employment to a single employer, substantially diminishes his economic mobility." (Foley v. Community Oil Company, Inc. (D.N.H. 1974) 64 F.R.D. 561, 563; Maloney v. E.I. Du Pont de Nemours & Co. (D.C. Cir.1965) 352 F.2d 936, 939 [cert. den. 383 U.S. 948 (16 L. Ed. 2d 210, 86 S. Ct. 1211)]; see Blades, Employment at Will v. Individual Freedom: On Limiting the Abusive Exercise of Employer Power (1967) 67 Colum.L.Rev. 1404, 1420; Note, Implied Contract Rights to Job Security, supra, 26 Stan.L.Rev. 335, 361 et seq.
[21] E.g., Greene v. Howard University, supra, 412 F.2d 1128 (employee told he is "indispensable"); Fulton v. Tennessee Walking Horse Breeders Ass'n (1971) 63 Tenn. App. 569 [476 S.W.2d 644] (resolution of congratulations passed at an annual meeting of the directors); Zimmer v. Wells Management Corporation (S.D.N.Y. 1972) 348 F. Supp. 540 (granting of additional authority, promotion, and permission to participate in special stock transaction).
[22] E.g., Maloney v. E.I. Du Pont de Nemours & Co., supra, 352 F.2d 936. See Note, Implied Contract Rights to Job Security, supra, 26 Stan.L.Rev. 335, 359 et seq.
[23] Fortune v. National Cash Register Co. (1977) 373 Mass. 96 [364 N.E.2d 1251]; Monge v. Beebe Rubber Co., supra, 114 N.H 130 [316 A.2d 549]; Rees v. Bank Building and Equipment Corporation (7th Cir.1964) 332 F.2d 548 (Missouri law applied). See also Zimmer v. Wells Management Corporation, supra, 348 F. Supp. 540 (dictum). Monge has been followed in Foley v. Community Oil Co., Inc. (D.N.H. 1974) 64 F.R.D. 561, and Pstragowski v. Metropolitan Life Ins. Co. (1st Cir.1977) 553 F.2d 1.
[24] For discussion of "good faith and fair dealing" in the employment context, see Madison, The Employee's Emerging Right to Sue for Arbitrary or Unfair Discharge (1980) 6 Employee Relations L.J. 422. Generally, see Corbin on Contracts (1980 Supp.) part 1, § 654D; Gellhorn, Limitations on Contract Termination Rights Franchise Cancellations (1967) Duke L.J. 465; MacNeill, Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical, and Relational Contract Law (1978) 72 Nw.U.L.Rev. 854.
[25] Nor do we consider the implications of the good faith and fair dealing requirement with respect to an employer's obligation, if any, to provide procedural safeguards such as warning of intended discipline or opportunity for response to charges of misconduct.
[26] Labor arbitrators have generated a large body of decisions interpreting and applying such terms as "just cause" (see Elkouri & Elkouri, How Arbitration Works (1973) ch. 15), and some of their work may be useful. It must be remembered, however, that arbitrators are selected by the parties and on the basis, partly, of the confidence which the parties have in their knowledge and judgment concerning labor relations matters. (See Steelworkers v. Warrior & Gulf Co. (1960) 363 U.S. 574 [4 L. Ed. 2d 1409, 80 S. Ct. 1347].) For courts to apply the same standards may prove overly intrusive in some cases. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2277669/ | 532 Pa. 504 (1992)
616 A.2d 620
WEATHERLY AREA SCHOOL DISTRICT, Township of Lehigh and Jim Thorpe Area School District, Appellants,
v.
WHITEWATER CHALLENGERS, INC. and Pocono Whitewater Limited, Appellees.
Supreme Court of Pennsylvania.
Argued January 22, 1992.
Decided November 13, 1992.
*505 James R. Nanovic, Jim Thorpe, for Township of Lehigh.
Jane F. Engler, Jim Thorpe, for Jim Thorpe Area School Dist.
Daniel A. Miscavige, Hazelton, for Weatherly Area School Dist.
Lawrence W. Dague, Camp Hill, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, and CAPPY, JJ.
OPINION
ZAPPALA, Justice.
The question raised by this appeal is whether a municipality or school district may assess an amusement tax upon the admission of patrons to a business operated substantially on state property under license agreement with the Commonwealth.
*506 Weatherly Area School District, Jim Thorpe School District and the Township of Lehigh (hereinafter "the taxing authorities") each enacted an ordinance pursuant to the Local Tax Enabling Act establishing a tax upon patrons for the admission to places of amusement within the area of each municipality or school district.[1] Whitewater Challengers and Pocono Whitewater, Limited (hereinafter "the rafting companies") are businesses licensed by the Commonwealth to offer whitewater equipment rentals, guided tours and instructions on whitewater rafting on the Lehigh River within Lehigh Gorge State Park. They collected and remitted the amusement taxes until March 31, 1986. Since then, they have declined to collect or remit the taxes.
As a result of the failure of the rafting companies to collect and remit the amusement taxes, the taxing authorities initiated lawsuits in May of 1988 to compel payment of unpaid amusement taxes. The trial was bifurcated as to liability and damages, and the trial court determined the liability issue in favor of the taxing authorities. On appeal, Commonwealth Court reversed, holding that neither a school district nor a local municipality may assess taxes under the Local Tax Enabling Act against recreational activities in a park owned by the Commonwealth. 128 Pa.Cmwlth. 541, 563 A.2d 1305. The taxing authorities petitioned for allowance of appeal and we granted allocatur. For the following reason, we now reverse.
In Borough of Wilkinsburg v. School District of Wilkinsburg, 365 Pa. 254, 74 A.2d 138 (1950), the borough had passed an ordinance imposing a tax upon the admission fee or privilege to attend any amusement. The School District of the Borough of Wilkinsburg refused to collect the tax on amounts collected at local football games. The borough brought an *507 action in mandamus against the school district to compel its compliance with the ordinance. While the legality of the tax was unquestioned, the enabling legislation granting authority to the borough to levy the tax did not grant it the power to compel another agency of the Commonwealth to collect the taxes. We held that a municipality cannot impose the duty of collecting a tax levied by the municipality upon any other political subdivision or agency of the Commonwealth without express statutory consent.
We reaffirmed the holding of Borough of Wilkinsburg v. School District of Wilkinsburg in Moon Area School District v. Garzony, 522 Pa. 178, 560 A.2d 1361 (1989). Garzony addressed the issue of whether the managing operator of a county parking lot was required to collect a school district's tax on fees paid by patrons of non-residential parking lots. The resolution adopted by the school district imposed the responsibility for collection of the tax and the filing of monthly returns upon the operators of the lots.
We concluded that the school district did not have the authority to impose the duty to collect the parking tax on the county itself. We then examined whether the corporation that operated the parking facilities on behalf of the county under a written management agreement was also exempt from the duty to collect the parking tax. We held that the exemption for political subdivisions or agencies of the Commonwealth extends to individuals or entities performing a government activity as a governmental servant or agent. In holding that the managing operator was exempt, we stated:
Just like a private corporation, any governmental agency or political subdivision, and indeed the Commonwealth itself, can only act or carry out its duties through real people its agents, servants or employees. It would be easy to adopt the simple test that any governmental activity carried out by anyone (or any entity) at governmental behest or under governmental regulation is insulated under Borough of Wilkinsburg (or some other such immunity) and that such a person or entity be construed as an employee, servant, or, *508 at least, as an agent, of the Commonwealth or one of its political subdivisions for such purposes.
In modern times, however, that would be going too far. In the Nineteenth Century, state action and private action were concepts clearly distinct and separate. But today, "the growth and proliferation of public works and controls have increasingly reduced `state' and `private' action to the conceptual end points on a broad and lengthy bond of government and private joint ventures." Abernathy, Civil Rights (West.Publ.Co.1980), p. 66. Who, one hundred years ago, for example, could have envisioned that a county government would participate in the private sector to the extent that it would establish a vast parking lot system next to a large international airport? Since many private sector activities today are touched by government involvement, investment, participation or regulation, we think that a more careful analysis is necessary to determine whether a person or entity is acting as a governmental agent or employee for purposes of Borough of Wilkinsburg.
522 Pa. at 186-187, 560 A.2d at 1366.
The test for determining whether one is a servant or an independent contractor was defined as follows:
"The legal distinction between an employee and an independent contractor is so well established as to require little, if any, discussion. The characteristics [sic] of the former relationship is that the master not only controls the result of the work but has the right to direct the way in which it shall be done, whereas the characteristic of the latter is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result: . . . `Broadly stated, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor. . . . It is not . . . the fact of actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.'"
*509 522 Pa. at 190, 560 A.2d at 1367, citing Feller v. New Amsterdam Casualty, 363 Pa. 483, 486, 70 A.2d 299, 300 (1950).
In Garzony, the county had entered into a management agreement under which it received between 95-97% of the revenues generated by the operation of the parking lot and for which it was responsible for 95-97% of the expenses. The county paid an administrative fee and a percentage based on overall revenues for the management services performed by a corporate entity. The receipts generated by the parking lot were the property of the political subdivision.
The licensing agreement between the Commonwealth and the rafting companies in the instant case provided:
1. The rafting companies have the right to charge reasonable and fair prices subject to the Commonwealth's approval.
2. The rafting companies must maintain complete financial records and permit examination and audit by the Commonwealth upon request.
3. The rafting companies must maintain liability insurance to cover claims for personal injury or property damage.
4. The rafting companies provide all licenses, permits, equipment, supplies, materials, merchandise, transportation and labor necessary for satisfactory operation of their businesses, except items otherwise stated.
5. The rafting companies pay their own utilities.
6. Employees of the rafting companies must attend "public contact training sessions" or other appropriate training as provided by the Commonwealth free of charge, not to exceed three hours per year, and the wage costs are to be borne by the rafting companies.
7. The rafting companies are permitted to provide rafts which may be leased for self-guided use in addition to rafts used for guided trips, not to exceed a specified maximum.
8. The rafting companies may not offer services other than those associated with guided and self-guided raft *510 and kayak tours without the Commonwealth's approval.
9. The Commonwealth defines the types of containers to be used for food served by the rafting companies.
10. Points of embarkation and debarkation are specified by the Commonwealth.
11. The rafting companies must maintain and repair all licensed premises.
12. The rafting companies agree to employ only competent and orderly persons who are neat, clean and courteous.
13. In the event of continued unsatisfactory performance by the rafting companies that the companies fail or refuse to remedy, the Commonwealth may terminate the agreement subject to a hearing procedure.
14. The rafting companies have the option to provide guided canoe or kayak trips with the approval of the park superintendent.
15. The rafting companies may transport no more than 120 passengers and use no more than 20 rafts per trip.
16. The schedule of trips of the rafting companies is established by the Commonwealth to prevent too many rafts on the river at any given time.
17. The Commonwealth does not guarantee water flow.
18. The rafting companies are required to provide a raft with guides four times per season to collect visible trash on the river banks.
19. The rafting companies are required to provide a manifest for each trip.
20. The rafting companies may not assign their agreement with the Commonwealth without consent, which may not be unreasonably withheld.
21. The rafting companies agree to maintain order among their customers.
22. The rafting companies indemnify and hold harmless the Commonwealth and the U.S. Army Corps of Engineers *511 from damages, claims, suits and expenses which may arise from their activities.
23. Upon breach of any condition of the agreement, the rafting companies confess judgment in favor of the Commonwealth for any monies due under the agreement.
The rafting companies agreed to pay a lump sum annual payment payable in installments to the Commonwealth and a $5.00 fee for each rented raft as a fee for the concession license agreement. The revenues generated by the rafting excursions were the property of the rafting companies. The rafting companies did not provide managerial or administrative services to the Commonwealth. The agreement between the Commonwealth and the rafting companies extensively regulated the use of public property by an entity to promote a private enterprise. The agreement was intended to protect the public property by regulating the environmental impact on the river and by assuring that the commercial use of the river would not unnecessarily interfere with the public use of the river.
Private action performed on public property does not become government action because it is licensed and closely regulated. Indeed, the interest of government in protecting the public interest is so paramount as to mandate not only close regulation, but also constant vigilance so that the public interest is not undermined. The rafting companies are licensees, not agents or servants of the Commonwealth. As licensees, the rafting companies are not exempt from the duty imposed upon them to collect the amusement tax by the taxing authorities.
The Order of the Commonwealth Court is reversed and the matter is remanded to the trial court for further proceedings.
McDERMOTT, J., did not participate in the consideration or decision of this matter.
NOTES
[1] The trial court found that the amusement taxes adopted by each of the taxing authorities are substantially identical. These taxes "are applicable to admission of patrons to `places of amusement' that are `within the limits' of the school district or township."
The ordinance passed by the township and resolutions passed by the school districts require that the "owner" of an amusement collect the tax. "Owner" is defined as the person in possession and operation of an amusement. Slip Op. at 3-4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3347281/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
This is an action for the foreclosure of a mechanic's lien brought by Steve Dostie against the defendant First Constitution Bank and others.
First Constitution in its answer filed special defenses to the effect that plaintiff had failed to serve a copy of the mechanic's lien on the bank in accordance with C.G.S. 49-34 and49-35, for which reason the mechanic's lien was not valid, and on January 7, 1992, filed a motion for summary judgment.
On February 6, 1992, the matter was referred to the undersigned Philip R. Pastore, as state trial referee.
On February 18, 1992, plaintiff Steve Dostie, acting by his attorney Thomas P. McKeon, filed a withdrawal of action as to all defendants without costs to any party, settling the matter and disposing of said motion for summary judgment.
The file is being returned to the office of the clerk of the Superior Court for any further action necessary.
Philip R. Pastore State Trial Referee CT Page 6348 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1531682/ | 480 F. Supp. 880 (1979)
UNITED STATES of America
v.
Robert H. MARTIN, Charles H. Adams, Donald R. Bernard, and John V. Holden.
Crim. No. H-78-13.
United States District Court, S. D. Texas, Houston Division.
December 5, 1979.
*881 *882 Robert G. Clark and D. McCarty Thornton, Washington, D. C., for plaintiff.
Jake B. Clegg and Bruce L. James, Sam L. Sterrett, Jr., Ralph A. Modad, and Gerald M. Birnberg, Houston, Tex., for defendants.
MEMORANDUM AND ORDER
STERLING, District Judge.
Presently pending before the Court are Defendants' motions in bar of prosecution and motions to dismiss the indictment. Defendants are charged with securities fraud, mail fraud, and conspiracy to defraud in connection with their activities in an alleged boiler room operation used to defraud purchasers of fractional working interests in oil and gas leases. This Court held a comprehensive evidentiary hearing on Defendants' motions. Based upon the evidence of the totality of the circumstances concerning the conduct of government attorneys from both the SEC and the U. S. Attorney's Office vis-a-vis these Defendants, this Court is of the opinion that the present indictment should be dismissed. Defendants' motions in bar of prosecution and to dismiss are based on (1) an alleged agreement with the SEC that they wouldn't be prosecuted; (2) the conduct of the U. S. Attorney's Office in bringing the indictment; and (3) a claim of collateral estoppel based on prior bankruptcy proceedings involving Tri-State Oil & Gas. (Defendants raised the issue of collateral estoppel after the evidentiary hearing was held by this Court.)
Defendants' motions in bar of prosecution as it pertains to the SEC are based on the entry of consent decrees in two SEC civil cases involving these Defendants: SEC v. Petco Oil & Gas and SEC v. Tri-State Oil & Gas. In Petco, a consent decree was entered into on May 3, 1976, by which Defendants Bernard and Holden were enjoined in a number of particulars from offering for sale oil and gas interests in connection with their activities with Petco. In Tri-State, a consent decree was entered into on September 22, 1976, by which Defendants Martin and Adams were enjoined from selling schedule D interests in connection with their activities with Tri-State Oil & Gas. The present indictment charges the Defendants, as owners, directors, officers, or as sales managers of Tri-State, with devising a scheme to defraud investors by obtaining funds for investment by means of false and misleading statements and then diverting large amounts of that money to their own use. Against this indictment, Defendants interpose an alleged agreement made between them and the SEC attorneys handling the Petco and Tri-State cases to the effect that by entering into consent decrees with the SEC, the Defendants could avoid potential criminal prosecution, and that the SEC would not make a criminal reference of the matter.
Courts have dismissed indictments brought in breach of an express agreement not to prosecute as a means of insuring that the criminal justice system is administered fairly. United States v. Minnesota Mining and Manufacturing Co., 551 F.2d 1106 (8th Cir. 1977); United States v. Rodman, 519 F.2d 1058 (1st Cir. 1975); United States v. Carter, 454 F.2d 426 (4th Cir. 1972); United States v. Phillips Petroleum Co., 435 F. Supp. 622 (N.D.Okl.1977). As the Phillips Petroleum court noted: "When the United States Government gives its word to or makes an agreement with one of its citizens, the Government must be held to that agreement and keep its promises." [at 640.]
*883 In the analysis of agreements such as these, the principles of contract law are used to determine whether a binding agreement has in fact been made. The prerequisites to a legally binding agreement are satisfied when one party makes an offer and the party to whom the offer is made accepts. Ingrassia v. Shell Oil Co., 394 F. Supp. 875 (S.D.N.Y.1975). An "offer" is defined as a promise upon an act, forbearance or return promise being given in exchange for the promise or its performance. Interstate Industries, Inc. v. Barclay Industries, Inc., 540 F.2d 868 (7th Cir. 1976). The essence of any agreement is mutual assent and the existence of assent can only be reconstructed through evidence of words or deeds which objectively manifest the expression of assent. Hodgson v. First Federal Savings & Loan Association of Broward County, Florida, 455 F.2d 818 (5th Cir. 1972).
The evidentiary hearing conducted January 8 through 12 indicated that the conduct of the parties in both the Petco and Tri-State cases was nearly identical: an SEC civil suit was filed, extensive negotiations were had between the SEC attorneys and the attorneys for the Defendants; during the negotiations the Defendants' concern over possible criminal prosecution was discussed with the SEC attorneys; by entering into the consent decrees, these Defendants effectively took themselves out of the business of selling oil and gas interests; and all parties believed that the entry of the consent decrees would be dispositive of the whole matter and none of the parties anticipated that there would be a later criminal prosecution of these Defendants. In this last regard, the evidence produced at the hearing showed that the SEC attorneys in Petco promised Bernard and Holden that the entry of the consent decree would "wrap it all up" and that although neither of the SEC attorneys was in a position to offer a formal grant of immunity, that as a practical matter they did have the power over criminal referral. In the course of the Tri-State negotiations, the Chief SEC attorney told an SEC accountant who was pressing for criminal reference that the case was not an appropriate one for criminal prosecution. This statement was made in the presence of Defendants' attorney. A Tri-State SEC attorney testified that he considered the case closed with the entry of the consent decree.
In interpreting the meaning of an agreement, the language used by the parties must be examined in light of the surrounding circumstances existing at the time the terms are negotiated. Arnold Palmer Golf Co. v. Fuqua Industries, Inc., 541 F.2d 584 (5th Cir. 1976). Not only are such existing circumstances relevant in ascertaining the meaning of an agreement, but subsequent acts of the parties are also relevant to show the meaning of the words used. Newburgh v. Florsheim Shoe Co., 200 F. Supp. 599 (D.Mass.1961). These well established concepts of contract law, now embodied in the Uniform Commercial Code's terms of "usage of trade" and "course of performance" [Tex.Bus. & Com.Code Ann. §§ 1.205(b) and 2.208(a)], help flesh out the meaning of the language used by the SEC attorneys in negotiating the civil consent decrees.
At the time these consent decrees were entered into, the local SEC office had historically handled securities fraud cases via the civil injunctive decree route rather than by criminal prosecution. Robert Axelrod, one of the SEC Petco attorneys, testified that the local SEC office believed that the civil mechanism was the best way to protect the investing public. Walter Gill, one of the SEC Tri-State attorneys, testified that he knew of no other case in which a criminal prosecution followed the entry of a consent decree. Kenneth Morris, attorney for Defendants in Tri-State, submitted an affidavit that he was not aware of any other case in which criminal charges were brought against defendants who had earlier entered into a civil consent decree with the SEC. The Court finds that these circumstances make Defendants' reliance on the SEC as the final arbiter as to criminal prosecution more reasonable.
*884 The subsequent course of SEC conduct is consonant with the theory that the entry of the consent decrees closed the cases as far as the SEC was concerned. The Petco decree was made on May 3, 1976. On August 25, 1976, the SEC filed suit against Tri-State, but charged only Martin and Adams in connection with the Tri-State activities, in spite of the fact that Bernard and Holden were actively involved in the Tri-State operation, as evidenced by the present indictment which charges them in connection with these activities. Mr. Gill testified that he was surprised that the SEC did not name Bernard and Holden in the Tri-State case. Although the SEC complaint in Tri-State focused on the entry of preliminary and permanent injunctions, it did allege diversion of money from investors and prayed for any "further relief as may be required in the interest of justice and equity." Thus, the omission of Bernard and Holden from an SEC lawsuit in which a possible remedy was restitution: a lawsuit charging the Tri-State operation with which Bernard and Holden were intimately involved is evidence that the SEC was acting in conformance with a deal that the SEC book on Bernard and Holden was considered closed. After the entry of the second consent decree, the SEC ceased all of its activities connected with Petco, Tri-State, and its officers. SEC attorneys, who had been in attendance at the Tri-State Chapter XI bankruptcy proceedings, ceased attending. The SEC attorneys involved in Petco and Tri-State did not make formal criminal referrals in those cases.
Based on the foregoing, the Court finds that the SEC attorneys did, in fact, make a deal with these Defendants. At a time when the SEC attorneys were aware of the Defendants' concern over possible criminal prosecution, the SEC attorneys promised the Defendants that by entering into consent decrees, the cases would be wrapped up. The Defendants reasonably believed that the SEC attorneys, as a practical matter, controlled the future course of any criminal prosecution. This belief was fostered by the past history of the local SEC office as well as the SEC attorneys handling the Petco and Tri-State cases. These Defendants bargained for a practical immunity from criminal prosecution and the SEC attorneys were aware of that intent, and it coincided with their intent that the civil consent decree would be dispositive of the matter. Although this loose language is not recommended as optimal as far as client protection is concerned, the Court finds that it did evidence the parties' meeting of the minds as regards criminal prosecution. Very similar language was used by a government attorney in United States v. Phillips Petroleum, supra. There the U. S. attorney apparently told one of the defendants, ". . . if you go ahead and sign the information . . then this will close the case once and for all." [at 625.] That Court held that the government had entered into an agreement which barred criminal prosecution, except for IRS violations which had been specially excepted from the deal. In United States v. Rodman, supra, the Court found that an express promise was made by the SEC that it would strongly recommend to the United States attorney that no prosecution against the defendant would be undertaken in exchange for testimony. The Court went on to hold that the failure of the SEC to comply with its agreement warranted dismissal of the indictment. The SEC attorneys in the present case went a step further: they promised that, as a practical matter, no criminal prosecution would occur. Having concluded that the SEC attorneys in Petco and Tri-State struck a deal with these Defendants barring future criminal prosecution as a practical matter, this Court must determine what effect, if any, should be given to that promise. In Dresser Industries, Inc. v. United States, 596 F.2d 1231 (5th Cir. 1979), the Court held that the federal government is not to be bound by a contract or agreement entered into by one of its agents unless that agent is acting within the limits of his actual authority. In so holding, the Court ruled that an agreement alleged to have been made between Dresser and the SEC precluding the Department of Justice from investigating *885 Dresser was unenforceable. In that case Dresser sought to enjoin the SEC and Justice Department from forcing Dresser to disclose details concerning allegedly questionable foreign payments. When Dresser filed its complaint the SEC and Justice Department had made informal requests for information from Dresser. The Fifth Circuit affirmed the district court's dismissal of the complaint on grounds of ripeness, except as to the alleged contract restraining the Justice Department which the Fifth Circuit said failed to state a claim. None of the cases relied on by the Fifth Circuit in Dresser, those being Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380, 68 S. Ct. 1, 92 L. Ed. 10 (1947), Posey v. United States, 449 F.2d 228 (5th Cir. 1971), and Jackson v. United States, 573 F.2d 1189 (Ct.Cl.1978), were criminal cases. Dresser was not a criminal proceeding either. In Posey, a tax refund case, the Fifth Circuit stated, "Regardless of the strong moral implications, it is well established that the Government is not bound by the unauthorized or incorrect statements of its agents." [at 234.] However, in the criminal context, federal courts must pay heed to the government's actions. It is well settled that federal courts have a supervisory function over criminal cases brought before them to insure that prosecutions are conducted fairly. It would be a complete abdication of the court's supervisory duty to allow the government to rely upon distinctions between express, implied, and apparent authority among its agents in avoiding the effect of its promise. See, In re John Doe, 410 F. Supp. 1163 (E.D.Mich.1976), where that Court noted, "The solution to agents who bargain away the government's rights is tighter administrative control within the executive branch." [at 1166]. See, also, United States v. Rodman, supra. This Court is of the opinion that while the agreement between the SEC and the Defendants does not bar this criminal prosecution, it is one factor to be considered in evaluating the fairness of the government's action.
As noted above the Petco consent decree was entered into on May 3, 1976, and the Tri-State decree was entered into on September 22, 1976. Michael Brown, the assistant United States attorney who presented this case to the grand jury, testified that he picked up the Tri-State file from another U. S. attorney in August, 1977. Mr. Brown testified that he did not know how the file came to the U. S. Attorney's Office. This Court concludes that the reasonable inference is that the case was informally referred to the U. S. Attorney's Office by someone in the SEC in violation of the promises made by the SEC attorneys handling the Petco and Tri-State civil cases. In late November, 1977, this case took a bizarre turn when it became intertwined with a scheme by former Houston Police Chief Carroll Lynn to extract money from Jack Holden in return for the fixing of this indictment. In late November and throughout December, Mike Brown and Ed Lowenberg, an SEC attorney on loan to the U. S. Attorney's Office, readied this case for presentment to the grand jury. On January 16, 1978, J. A. "Tony" Canales, the U. S. Attorney for this District, learned that Carroll Lynn had sought $45,000 from Jack Holden on Lynn's representation that he could bribe Canales and insure that Holden would not be prosecuted. Mr. Canales, upon hearing this from Leonel Castillo, then head of the Immigration and Naturalization Service, was quite upset that Lynn was making those representations. Mike Brown testified that Canales did not instruct him to get an indictment of these Defendants, but instead left the matter entirely up to him. However, Brown did admit that his first reaction was to get an indictment right away to clear up this matter. After a brief presentation, of no more than one hour, to the grand jury on the last day of its term, the present indictment was returned. The grand jury was not informed of either the SEC agreement or the Carroll Lynn matter. No record was made of the presentation to the grand jury.
The historic purpose of the grand jury is to protect citizens from arbitrary or unreasonable prosecutions. See, United States v. Colandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). This Court *886 recognizes that its role vis-a-vis the grand jury and the U. S. attorney is a limited one. Courts are not free to interfere with the prosecutorial discretion vested in the executive branch of our government by the United States Constitution. See, United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978). However, this Court strongly feels that the indicting grand jury here was used to rubber stamp the wishes of the prosecutors in derogation of its duty to stand as an independent body placed between the prosecutor and the accused. Wood v. Georgia, 370 U.S. 375, 390, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962). In Wood, the Court stated that society needs an independent and informed grand jury. In United States v. DeMarco, 401 F. Supp. 505 (C.D.Cal.1975), aff'd 550 F.2d 1224 (9th Cir. 1977), a government attorney told the defendant that if he chose to assert his statutory venue right to be tried in California rather than in the District of Columbia, the prosecutor would secure an additional indictment against him in California. The district court dismissed that indictment on two grounds, the second being non-disclosure of that statement to the grand jury. In that regard the Court stated:
"Despite the defendant's colorable claim that the indictment was the product of improper motives and the defendant's colorable claim that the charge in question had been the subject of improper threats, the prosecutor did not disclose to the grand jury that the charge could be attacked as an unjustifiable exercise of the charging power. The grand jury was entitled to be appraised of that information so that it could make an independent judgment as to whether it was appropriate to return an indictment under the circumstances." [at 513.]
The Ninth Circuit affirmed on the basis of the first ground decided by the district court and did not reach the second ground. This Court is persuaded that the failure of the United States attorney to inform the grand jury of the Carroll Lynn bribery scheme prevented the grand jury here from returning an informed and independent indictment. Had the grand jury been informed of the Lynn matter, it might have demanded a more thorough presentation of the prosecution's case and may have wanted to hear from the Defendants, at least one of whom was frustrated in his efforts to appear and testify before the grand jury by the lack of promised notice of when the case would be presented by the U. S. attorney. Instead, the U. S. attorney in charge of this matter rushed it through a grand jury in the space of one hour on the last day of its long term. The casual misuse of the grand jury in this fashion cannot be squared with the crucial role the grand jury is designed to play in our criminal justice system. See, United States v. Gallo, 394 F. Supp. 310, 314 (D.Conn.1975).
Although neither the SEC agreement nor the manner in which this case was presented to the grand jury alone might justify a dismissal of the present indictment, this Court is of the opinion that based on the totality of the circumstances presented here, the present indictment must be dismissed. See, United States v. Braniff Airways, Inc., 428 F. Supp. 579 (W.D.Tex. 1977). In view of the foregoing, the Defendants' motion to dismiss based on the collateral estoppel effect of the bankruptcy proceedings involving Tri-State, which may not be without merit, need not be discussed nor need the question whether it was untimely filed. It is, therefore,
ORDERED that Defendants' motions to dismiss the indictment are GRANTED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1232797/ | 545 S.E.2d 153 (2001)
248 Ga. App. 4
POWLES
v.
The STATE.
No. A00A2181.
Court of Appeals of Georgia.
February 8, 2001.
*154 James W. Bradley, Jonesboro, for appellant.
Robert M. Powles, pro se.
Robert E. Keller, Dist. Atty., Staci L. Guest, Asst. Atty., for appellee.
BLACKBURN, Chief Judge.
Following a jury trial, Robert Marvin Powles appeals his conviction on four counts of aggravated assault on a peace officer (Counts 1 through 4), possession of a weapon during the commission of a crime (Count 5), cocaine trafficking (Count 6), possession of marijuana (Count 7), theft by receiving stolen property (Count 8), and possession of a firearm by a convicted felon (Count 9). Powles contends that the trial court erred by (1) not merging all but Counts 6 and 7 into the first count of aggravated assault, (2) dismissing his suppression motion for failure to provide adequate facts, and (3) ruling that the State proved a lawful entry and search.
We note initially that Powles has violated Court of Appeals Rule 27 by failing to provide this Court with any facts or citations to the record. "`We have repeatedly held that it is not the function of this court to cull the record on behalf of a party.'" Chastain v. *155 State.[1] Because the issues raised on appeal are narrow, however, we will exercise our discretion and resolve this appeal on its merits. See id.
The evidence at trial showed that Agents Mickey Cox, Dennis Messman, Robert Bridgeman, and Reginald McCain forcibly entered Powles' residence pursuant to a warrant. Cox entered the residence first, followed by McCain. A male later identified as Powles shot Cox from behind a bedroom door. Cox was able to fire back. After the shooting, Special Agent Noe was called in to execute the warrant. Noe seized powder cocaine, crack cocaine, marijuana, electronic scales, and four firearms from the home.
1. Powles argues that all of the counts aside from the drug counts (Counts 6 and 7) should merge into Count 1 (aggravated assault on Agent Cox) because the seven remaining counts relate to the act of shooting Agent Cox with a stolen .380 caliber pistol. We disagree.
A crime is included in another as a matter of fact if "[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged." OCGA § 16-1-6(1). Alternatively, a crime is included in another as a matter of law if "[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission." OCGA § 16-1-6(2); see Hardy v. State.[2]
(a) First, we determine that Counts 2 through 4 (aggravated assault on Agents McCain, Bridgeman, and Messman, respectively) do not merge into Count 1 (aggravated assault on Agent Cox). To prove aggravated assault, the State must show simple assault with certain aggravating circumstances. See OCGA §§ 16-5-20; 16-5-21. Simple assault requires proof that the defendant "[a]ttempt[ed] to commit a violent injury to the person of another" or "[c]ommit[ed] an act which place[d] another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20.
Counts 2 through 4 do not merge as a matter of fact because each count required proof that a different officer was placed in reasonable apprehension of immediately receiving a violent injury. See OCGA §§ 16-1-6(1); 16-5-20. Indeed, Agent McCain testified that he thought he was about to be shot. Agent Bridgeman, who entered the residence after McCain, testified that he felt fear and apprehension because of the gunfire. Agent Messman, who was in the living room, testified that he tried to find cover when he heard the gunfire. Because Counts 1 through 4 involved separate victims, the counts also do not merge as a matter of law. See OCGA § 16-1-6(2).
(b) Powles' contention that Count 5 (possession of a weapon during the commission of a crime) merges into Count 1 (aggravated assault on Agent Cox) is unavailing. Such crimes do not merge because, as we have previously noted, "[t]he legislature intended to impose additional punishment against an individual who uses a firearm during the commission of certain crimes, including aggravated assault." Pace v. State.[3]
(c) Powles also contends that Count 8 (theft by receiving stolen property) merges into Count 1 (aggravated assault on Agent Cox) because the stolen property listed in the indictment was the .380 caliber pistol Powles used to assault Agent Cox. We disagree. "A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner." OCGA § 16-8-7(a). This count does not merge into Count 1 as a matter of fact because it required proof that Powles knew or should have known that the firearm was *156 stolen. See OCGA § 16-1-6(1). No such proof is required for an aggravated assault conviction. See OCGA § 16-5-21. The counts also do not merge as a matter of law. See OCGA § 16-1-6(2).
(d) Finally, Powles contends that Count 9 (possession of a weapon by a convicted felon) merges into Count 1 (aggravated assault on Agent Cox). We again disagree. This count does not merge into Count 1 as a matter of fact because it required proof that Powles was a convicted felon, and Count 1 did not. See OCGA § 16-1-6(1). The counts also do not merge as a matter of law. See OCGA § 16-1-6(2).
2. A trial court's dismissal of a motion to suppress is within its discretion and "is not to be disturbed unless the appellate court finds abuse of that discretion." Amerson v. State.[4] By statute, a motion to suppress evidence illegally seized "shall be in writing and state facts showing that the search and seizure were unlawful." OCGA § 17-5-30(b).
In his motion to suppress, Powles stated,
On or about December 12, 1998, at 3:45 p.m. members of the Clayton County Narcotics Unit, consisting of Officers M. Cox, F.P.P.D., R. McCain, C.C.P.D., R. Bridgeman, C.C.P.D., and others smashed open the door to defendant's residence and proceeded to search the residence and seize the defendant and others present.
Defendant Powles stated that the officers entered the residence located [at] 4101 John Arnold Circle, Conley, Georgia without consent and without a valid warrant.
Citing State v. Goodman,[5] Powles argues that the trial court erred by dismissing his suppression motion for insufficient facts because his motion contained pertinent information, including the date of search, the identity of the person searched, and the identity of the officer that conducted the search. We disagree.
In Goodman, the State disputed the trial court's denial of its motion to dismiss Goodman's suppression motion for insufficient facts. This Court, in upholding the trial court's decision, noted that
with respect to warrantless searches, many of the necessary allegations in the motion to suppress are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search). Thus, to determine the sufficiency of the motion to suppress evidence obtained in a warrantless search and seizure, the court examined the specific allegations set forth in the motion to determine whether those allegations were sufficient to put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.
(Citation and punctuation omitted.) Goodman, supra at 170, 469 S.E.2d 327. Powles' reliance upon Goodman is misplaced because the search here was performed pursuant to a warrant. Although Powles conclusively stated in his motion to suppress that the warrant was invalid, he did not provide any facts to support this conclusion. We have stated that "motions to suppress must state facts and not merely conclusions." Rouse v. State.[6] Powles did not put the State on notice about how he intended to attack the validity of the warrant. Having found no abuse of discretion, we uphold the trial court's dismissal of the motion.
3. Powles argues that the State failed to prove a lawful entry and search with competent evidence of a search warrant. Powles did not raise this issue below, only having stated that the warrant was invalid. Because Powles did not preserve this issue, we need not address it. See Smith v. State.[7]
Judgment affirmed.
ELDRIDGE and BARNES, JJ., concur.
NOTES
[1] Chastain v. State, 237 Ga.App. 640, 516 S.E.2d 362 (1999).
[2] Hardy v. State, 210 Ga.App. 811, 813, 437 S.E.2d 790 (1993).
[3] Pace v. State, 239 Ga.App. 506, 509(4), 521 S.E.2d 444 (1999).
[4] Amerson v. State, 177 Ga.App. 97, 100(5), 338 S.E.2d 528 (1985).
[5] State v. Goodman, 220 Ga.App. 169, 469 S.E.2d 327 (1996).
[6] Rouse v. State, 241 Ga.App. 167, 168, 526 S.E.2d 360 (1999).
[7] Smith v. State, 221 Ga.App. 428(2), 472 S.E.2d 4 (1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1301866/ | 159 Ga. App. 546 (1981)
284 S.E.2d 282
GRAHAM BROTHERS' CONSTRUCTION COMPANY, INC.
v.
C. W. MATTHEWS CONTRACTING COMPANY, INC.
62062.
Court of Appeals of Georgia.
Decided September 14, 1981.
H. Dale Thompson, Aubrey L. Coleman, Jr., for appellant.
Paul J. Jones, William T. Gerard, for appellee.
McMURRAY, Presiding Judge.
On July 7, 1975, C. W. Matthews Contracting Company, Inc., and Gentry & Thompson, Inc., entered into a contract with the Georgia Department of Transportation for the relocation around the Atlanta airport of a portion of Interstate Highway 85 and to perform, among other items, 4.039 miles of grading. The contract was for more *547 than $13 million. Matthews, as prime, then entered into a written subcontract agreement with "Graham Brothers," as subcontractor, in the amount of $933,642.10 to perform certain items of the bid such as "Clear & Grub" for $33,000; "Unclass. Excav., Incl. Haul," for $897,293.10, and "Subgr Stab. Aggr. TP. II," for $3,349, with certain clarification notations incorporated with reference to these items. The contract provided, among other things, for payment for the actual work performed to the satisfaction of the prime and/or owner to the extent of payments actually received by "Prime from Owner," less a retainage in addition to any withheld by the owner; and to complete the work not later than "same as prime" and to maintain such rate of progress in performance of said work so as not to impede the prime or any other subcontractor in the performance of the work; and the quantity of the work contracted "may be increased or decreased in the same manner as provided in the Contract between Prime and Owner."
Graham contends that there were certain oral modifications as to the subcontract even before the work began which were not reduced to writing nor reflected in the written contract and that there was no agreement as to the time duration it would stay on the job nor as to the quantity of dirt it would move. However, as above stated, the subcontract in paragraph 7 stated that the work would be completed "not later than same as prime [`same as prime' typed into a blank space in the contract]," and the quantity of work might be increased or decreased "in the same manner as provided in the Contract between Prime and Owner." Sometime between January 30, 1976, and March 1, 1976, after partial completion of the contract, Graham left the project contending that there was an agreement with Matthews that if Graham would sell Matthews certain equipment that Matthews would not hold Graham liable for any extra costs on this project. Matthews did buy $210,000 worth of equipment from Graham in March, 1976, but Matthews disputes the claimed oral side agreements to the contract and the oral agreement regarding permission for Graham to leave the project sometime in February, 1976. It contends that on March 17, 1976, it notified "Graham Brothers Construction Co., Inc.," that it was in default under the terms of the contract based upon the fact that it had ceased operations and was removing its equipment from the project, having advised Matthews that it was financially unable to continue operations and was abandoning the job. Hence, under the terms of the contract, Matthews was taking over the job and completing the remainder of the work, subcontracting it and retaining all monies due under the contract, as well as any due under other contracts whether with Matthews or affiliated companies with Matthews and that it *548 would attempt to complete the work economically as able but that it would look to the subcontractor "for any deficiency that may exist upon completion."
On January 27, 1977, Matthews sued Graham Brothers Construction Co., Inc., seeking recovery in the amount of $320,594.31 after credit against their damages for breach of the written subcontract. Plaintiff contended that defendant Graham, after performing part of the contract "continued work under said subcontract until February, 1976," thereafter ceasing operations and abandoning the job in February, 1976, thus breaching the terms and conditions of the contract.
Defendant Graham answered, admitting execution of the subcontract, part performance, contending it withdrew by agreement after selling part of its equipment to the plaintiff and otherwise denied the claim, contending further that it was entitled to an accounting and sought recovery from the plaintiff of an additional $150,000. Plaintiff Matthews then, by four separate amendments, changed the amounts due under the breach; and again after the pre-trial set up a different amount claimed, the court orally granting plaintiff permission to amend the pre-trial order to claim $510,600.53 (including interest). However, in the closing argument plaintiff's counsel referred to the figure $327,469.15 in damages, and the court in its charge stated that the plaintiff sought damages in the amount of $429,062.32 ($429,056.32, the amended figure). The jury then returned a verdict for the plaintiff in the amount of $317,222.69, and judgment was entered accordingly. Defendant then filed its motion for new trial, amended same, and after a hearing, it was denied. Defendant appeals. Held:
1. Both the pleadings and the pre-trial stipulations established that defendant commenced performance under the subcontract and continued work until "February, 1976." However, both a discovery deposition and testimony at trial was that work under the subcontract continued during the month of February, 1976, and plaintiff moved for modification of the pre-trial order to prevent manifest injustice in order that it be allowed to show evidence as to the exact date of the breach of the contract. Whereupon defendant moved for a mistrial when the trial court, during the trial, permitted the plaintiff to withdraw this pre-trial stipulation as to the time of the alleged breach or defendant's departure from the job after the stipulations had been read to the jury. Under the authority of the provisions of Code Ann. § 81A-116 (Ga. L. 1966, pp. 609, 628; 1967, pp. 226, 231; 1968, pp. 1104, 1106), a pre-trial order may be "modified at the trial to prevent manifest injustice." We find no reversible error in the trial court's denying the motion for mistrial after allowing the *549 modification. Nor do we find any merit in the complaint that the trial court erred in denying the motion for continuance or postponement to allow defendant to prepare for the change. The continuance motion was overruled for the time being, the court stating that after the close of plaintiff's evidence if defense counsel needed additional time, "then you may apply for it then." Counsel for the defendant thereafter made no such request for further continuance or postponement, and we find no abuse of discretion on the part of the trial court as we find no great material changes in the allowance of the amendment, nor in denying the motion for continuance. See Code §§ 81-1419, 81-1420; Walton v. Walton, 223 Ga. 85 (2), 86 (153 SE2d 554); Benjamin v. Weintraub, 169 Ga. 770, 775 (151 S.E. 381). These enumerations of error are not meritorious.
2. Defendant next enumerates error as to certain repetitious written requests by the plaintiff which were given in the court's charge, citing Gates v. Southern R. Co., 118 Ga. App. 201, 203-204 (3) (162 SE2d 893). We do not find the written requests given by the court as being subject to the criticism that they were unduly repetitious. Such charges were based upon Code §§ 20-1402, 20-1409, and 20-1407, and the charge as given was explanatory of damages contemplated by a breach of contract. A reading of the court's entire charge does not show that it was totally one-sided in favor of the plaintiff as complained of by the defendant. There is no merit in this complaint.
3. Defendant's next contention is that the trial court erred in failing to give a written request that there had been a mutual disregard of the written contract which required subsequent notice from plaintiff to the defendant if plaintiff later intended to enforce the exact terms of the agreement. However, this written request was withdrawn by the defendant, and it cannot now insist that the principles of its request to charge were applicable to the case. See Carter v. Pruitt, 235 Ga. 204 (219 SE2d 114). The defendant having adopted the previous withdrawal of its written request did not thereafter object to the omission of this request from the court's charge and cannot now complain. See Code Ann. § 70-207 (a) (Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078); Imperial Massage &c. Studio v. Lee, 231 Ga. 482 (1) (202 SE2d 426); Dodd v. Dodd, 224 Ga. 746 (164 SE2d 726); Love v. Savannah Electric &c. Co., 149 Ga. App. 747, 748 (3) (256 SE2d 112).
4. Defendant's next complaint is that the trial court's failure to give its written request No. 7 in full was in error. However, this charge was given in substance by the court with reference to damages recoverable for a breach of contract as being those that, "arise naturally and according to the usual course of things from such *550 breach," and "such as the parties contemplated when the contract was made as the probable result of its breach," and thereafter, the substance of Code § 20-1406, including the phrase, "unless they are capable of exact computation." See Sanford-Brown Co. v. Patent Scaffolding Co., 199 Ga. 41, 43 (33 SE2d 422); Darlington Corp. v. Evans, 88 Ga. App. 84,90 (76 SE2d 72); Jackson v. Miles, 126 Ga. App. 320, 321 (2) (190 SE2d 565); Hardwick v. Price, 114 Ga. App. 817 (3) (152 SE2d 905). Thus, the court, in substance, gave the defendant's request No. 7. We find no merit in this complaint.
5. The trial court did not err in charging plaintiff's written request to charge that an action at law lies for breach of a contract and that damages are given as compensation for the injuries sustained. Avis, Inc. v. Graham, 217 Ga. 330, 331 (1) (122 SE2d 245); Chadwick v. Dolinoff, 207 Ga. 702, 703 (1) (64 SE2d 76). The elements of a right to recover for a breach of contract are the breach and the resultant damages to the party who has the right to complain about the contract being broken. See Selman v. Manis, 100 Ga. App. 422 (5) (111 SE2d 747). The court thereafter charged that of course it was up to the jury to decide under the evidence and law given as to whether there had been a breach of contract and, if so, whether damages have been sustained. The charge as a whole did not imply a cause of action existed on behalf of the plaintiff. There is no merit in this complaint.
6. The mere fact that shortly before the above instructions the court charged that a breach of contract arises by the failure of a party to perform under the terms of the contract without legal excuse, fault, or consent of the opposite party, and the other may accept the tender of the breach of contract and sue for damages, this did not amount to a repetition nor did it amount to an instruction to the jury that the defendant had admitted the contentions of the opposite party concerning one of the vital issues of the case. Farr v. Collins, 109 Ga. App. 37, 39 (135 SE2d 65), cited by defendant is not controlling here. We find no merit in these complaints.
7. The defendant contended that the contract had been voluntarily terminated by agreement between the parties, defendant would sell some of the equipment plaintiff needed and would wait until the job was finished to get its payment and same would relieve it of further responsibility on the job. The trial court did not err in failing to instruct the jury that a threshhold issue was that the jury must first determine what the true contract was between the parties. Here the subcontract was admitted and stipulated into evidence and partial performance had been rendered. Again the trial court did not err in charging the elements of a right to recover for the breach of a contract as shown above in Division 5, citing Selman v. Manis, 100 Ga. App. 422 (5), supra.
*551 8. The trial court did not err in charging that a party who has been injured by a breach of contract can recover profits that would have resulted from performance when the amount of the loss and the fact that they could have been prevented by the breach can be proved with reasonable certainty. See Code § 20-1406; Carter v. Greenville Service Co., 111 Ga. App. 651, 652 (1) (143 SE2d 1); Appling Motors v. Todd, 143 Ga. App. 644, 645 (2b) (239 SE2d 537).
The trial court did not err in charging on the burden of proof, that is, as to both parties, and the defendant had the burden of proof by legal preponderance of the evidence as to its right to any setoff in the amount claimed. See Phillips v. Lindsey, 31 Ga. App. 479 (1), 482 (120 S.E. 923). The court fully instructed the jury that the plaintiff first had the burden of proof by what is known as a preponderance of the evidence but as to the counterclaim by the defendant, it is governed by the same rules of law and further that if neither party proves its case by a preponderance of the evidence the verdict would be in favor of the defendant but without any money recovery. The charge as a whole is not subject to the objection that it amounted to the giving of conflicting instructions requiring the grant of a new trial. There is no merit in this complaint. See Potts v. Levin, 113 Ga. App. 4, 6 (2) (147 SE2d 1).
9. The trial court did not err in charging that the consent of both parties is essential to the rescission of the contract. It is true that the court in charging that it cannot be rescinded by the act of the parties did not preface "the parties" with the language "one of," but this appears to have been the result of a slip of the tongue or a verbal inaccuracy. See Siegel v. State, 206 Ga. 252 (2) (56 SE2d 512); Billups v. State, 236 Ga. 922, 923 (225 SE2d 887). However, construing the court's charge as a whole, the mere omission of the words "one of" was not harmful. See State Hwy. Dept. v. Davis, 129 Ga. App. 142, 143 (1) (199 SE2d 275). Since the trial court stated clearly that the consent of both parties is essential to rescission, it is quite clear as to the meaning here. We find no reversible error in the charge as given.
Further, the charge as to release with reference to the defendant being released from its obligation to perform the subcontract with the plaintiff, there must be a mutual agreement and intent by both parties that defendant be released and this agreement be supported by consideration is not in conflict with the charge on rescission as each was a separate defense, each was appropriate and entirely consistent and explanatory of the defenses raised by the defendant.
10. The trial court did not err in refusing to charge the jury in its opening summary of the contentions of the parties that the defendant simply had an agreement to move as much material (dirt) as it wishes for a given price and had a right to cease work at any point. Such *552 instructions would have been argumentative. Neither the pleadings nor the evidence resulting from this written subcontract authorized such a charge. There is no merit in this complaint.
11. The trial court did not err in charging that the burden of proof was on the defendant to prove by a legal preponderance of evidence previously defined to the jury that the plaintiff agreed for the defendant to withdraw from the subcontract. The subcontract was only partially performed by the defendant and its defense was that of novation in which plaintiff allowed it to be released from the contract. There is no merit in this complaint.
12. The evidence here was sufficient to support the verdict and judgment, and this court will not disturb the refusal to grant a new trial where there is any evidence at all to support it. See Blazer Financial Services v. Stewart, 141 Ga. App. 156, 157 (1) (233 SE2d 1). The question of damages is in the discretion of the jury, and neither the trial court nor the appellate court should interfere unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias. Code § 20-1411; Piedmont Life Ins. Co. v. Bell, 109 Ga. App. 251 (1) (135 SE2d 916); United Ins. Co. v. Moore, 147 Ga. App. 815, 816 (2) (250 SE2d 810); Hill Aircraft &c. Corp. v. Flanders, 143 Ga. App. 504, 505 (2) (239 SE2d 155).
Judgment affirmed. Quillian, C. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1228303/ | 571 P.2d 328 (1977)
Robert ALLEN and Grace Gunn, Plaintiffs-Appellees,
v.
CITY AND COUNTY OF HONOLULU, Defendant-Appellant.
No. 5957.
Supreme Court of Hawaii.
November 3, 1977.
Samuel P. King, Jr., Deputy Corp. Counsel, Honolulu (George T. Aoki and Edmund L. Lee, Jr., Deputy Corp. Counsels, Honolulu, on the briefs), for defendant-appellant.
Robert M. Ehrhorn, Jr., Honolulu (Okumura & Takushi, Honolulu, of counsel), for plaintiffs-appellees.
Before RICHARDSON, C.J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
KOBAYASHI, Justice.
The City and County of Honolulu (hereinafter the City) brings this appeal from a judgment of the trial court granting money damages to Grace Gunn and Robert Allen (hereinafter appellees). The trial court ruled that the City, by rezoning appellees' property, was liable for costs incurred by the appellees in reliance on the zoning applicable to the property when they purchased it.
For reasons stated hereinafter, we reverse.
ISSUE
The central issue presented by this appeal is whether the trial court erred in granting damages for the development costs incurred by appellees.
FACTS
Appellees, a real estate agent and a developer, sought land suitable for residential development. They purchased the oceanfront property which is the subject of this appeal only after inquiring about its zoning and discussing development alternatives with an architect, Jo Paul Rognstad. On November 8, 1972, the appellees purchased the property identified by Tax Map Key Nos. 6-8-11-46 and 47 situated at Kamananui, Waialua, Oahu, Hawaii, for $207,400.00. At the time of the purchase, and since the adoption of the Comprehensive Zoning Code in 1969, the property was zoned A-3. This classification allows, among other things, construction not exceeding a height of 350 feet.
On or about November 10, 1972, appellees retained the professionsl services of Rognstad and he commenced architectural, engineering and other work necessary to obtain a building permit from the City for an eleven-story condominium structure. On March 20, 1973 Rognstad submitted appellees' *329 permit application to the City's Building Department.
On March 6, 1973, "... in response to political pressure from certain residents in Waialua to prevent highrise construction in the area",[1] Bill No. 46, Draft 1, entitled "An Ordinance to Rezone a Portion of A-3 Apartment District Nos. R-8 and R-19 situated at Mokuleia, Waialua, Oahu, Hawaii, to A-2 Apartment District No. R-6", was introduced to the City Council. Appellees learned of the proposal to amend the zoning in a newspaper article on or about March 3, 1973, and appellee Allen later testified in opposition to the proposal at the public hearing held concerning Bill 46.
By May 14, 1973, several government agencies had initialed their approval on the permit application, but on May 15, 1973, the zoning amendment took effect as Ordinance 4145. Thereafter the permit application and construction plans were withdrawn by the appellees. The permit was neither granted nor denied by the Building Department.
Appellees claimed they had spent $77,017.26 in nonrecoverable expenses on account of the downzoning and sought damages in that amount at trial. The trial court found, as stated in its Finding of Fact No. 12, that:
12. Prior to the effective date of Ordinance 4145, the Plaintiffs in reliance on the A-3 zoning then in effect and on the reasonable probability that a building permit would be issued, substantially changed their position and incurred certain nonrecoverable costs for the development of their property in the amount of $67,950.26 for which they were and are liable.
The trial court stated in its Conclusions of Law:
1. Plaintiffs had the right to rely on the zoning requirements existing prior to the effective date of Ordinance 4145.
2. The City is liable for the costs incurred by the Plaintiffs in reliance on the then existing A-3 zoning and on the reasonable probability of the issuance of a building permit.
3. The mere introduction of Bill 46 on March 6, 1973 does not constitute notice to the Plaintiffs that the zoning would be changed.
OPINION
Appellees base their claim for damages on two distinct legal theories, vested right and equitable estoppel. Though theoretically distinct, courts across the country seem to reach the same results when applying these defenses to identical factual situations. As stated in Heeter, "Zoning Estoppel: Application of the Principles of Equitable Estoppel and Vested Rights to Zoning Disputes", 1971 Urban L.Ann. 63 at 64-65:
... The defense of estoppel is derived from equity, but the defense of vested rights reflects principles of common and constitutional law. Similarly their elements are different. Estoppel focuses on whether it would be inequitable to allow the government to repudiate its prior conduct; vested rights upon whether the owner acquired real property rights which cannot be taken away by governmental regulation. Nevertheless, the courts seem to reach the same results when applying these defenses to identical factual situations. (Footnotes omitted.)
The California Supreme Court spoke in terms of vested rights when it denied a developer a writ of mandamus to compel the California Coastal Zone Commission to *330 grant an exemption to its permit requirements. Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Cal.3d 785, 132 Cal. Rptr. 386, 553 P.2d 546 (1976), cert. den. 429 U.S. 1083, 97 S.Ct. 1089, 51 L.Ed.2d 529 (1977). But in Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla. 1976), the Florida Supreme Court held that the City was equitably estopped from rezoning petitioner's property in order to halt multi-family residential development. But, as in California, the Illinois Appellate Court, Second District, held that the developers did not acquire a vested right in the former zoning classification which would entitle them to a writ of mandamus to compel the removal of a stop work order. First National Bank & Trust Co. v. City of Rockford, 47 Ill. App.3d 131, 5 Ill.Dec. 509, 361 N.E.2d 832 (1977).
The only Hawaii Supreme Court case dealing with this issue spoke in terms of estoppel. Denning v. County of Maui, 52 Haw. 653, 485 P.2d 1048 (1971). The Court, at 52 Haw. 658-59, 485 P.2d 1051, set the standard for applying the doctrine of equitable estoppel in zoning disputes, wherein this court stated:
The "rule of law" laid down by the trial court was, in summary:
If Denning expended substantial sums for the preparation of plans and documents in good faith reliance upon law prior to Ordinance 641 and which expenditures were incurred upon the reasonable probability of a building permit being issued then Denning must be allowed the right to proceed.
We further stated at 52 Haw. 658-59, 485 P.2d 1051:
In order to avoid unnecessary appellate proceedings and for the proper guidance of the trial court, we are of the opinion that for Denning to be allowed the right to proceed in constructing the planned structure the facts must show that Denning had been given assurances of some form by appellants that Denning's proposed construction met zoning requirements. And that Denning had a right to rely on such assurances thereby equitably estopping appellants from enforcing the terms of Ordinance No. 641.
. . . . .
Mere good faith expectancy that a permit will issue does not create in a property owner a right to continue proposed construction.
But we need not decide here whether the City should be estopped from enforcing the terms of Ordinance 4145. Denning, supra, does not deal at all with the issue of payment of damages by the government for the development costs of the petitioners, but speaks only in terms of the right to proceed with construction. In each of the cases cited by the parties in their briefs and in each case found by this court where a developer has been held to have a vested right to a building permit, or the government held to be equitably estopped from enforcing new land use regulations, the remedy awarded has been a declaratory ruling that the new regulation is unlawful as applied to that developer, or a writ compelling the issuance of a permit. The remedy is to allow continued construction, not award damages. Here, the trial court ruled that appellees had a right to rely on the A-3 zoning and that the City was liable for appellees' nonrecoverable preparatory expenses. On review of the record it is difficult to ascertain the basis of that ruling.
The record does show that this case was the last of three heard by the same court concerning Ordinance 4145. The first two, Guerin v. Yuasa, et al., Civil No. 39390, and Hale Kona Kai Development Corp. v. Yuasa, et al., Civil No. 39391 (together hereinafter referred to as Guerin), were tried together, the Findings of Fact and Conclusions of Law, along with the Stipulation for Judgment were received in evidence below and made a part of the record of this appeal. Guerin involved other developers in Mokuleia, but differed factually from the case at bar in that those developers had been issued building permits (albeit by court mandate) and had begun actual construction. After the adoption of Ordinance 4145 the City revoked the permits. The trial court ruled in Guerin that the permits *331 were rightfully revoked but held the City liable for the developers' wasted expenses. Not part of the record on appeal here, but a matter which this court may properly take judicial notice of (see In re Ellis, 55 Haw. 458, 522 P.2d 460 (1974), cert. den. 419 U.S. 1109, 95 S.Ct. 782, 42 L.Ed.2d 805 (1975)), is the fact that the plaintiffs in Guerin did not seek monetary award but declaratory and injunctive relief that would permit them to complete the construction they had begun. It should be noted that no appeal was taken in Guerin.
It seems apparent that the trial court, in fashioning the remedy it did in Guerin, and again in this case, was attempting to protect the community from undesirable development, yet not penalize landowners for what the trial court believed was a politically motivated change in the laws. The trial court in this case stated, responding to an assertion by the attorney for the City that money damages would be inappropriate:
The court is taking judicial notice from the facts in the other case and from the newspapers at the time, the news stories at the time that this was going on, that the and the fact that the business area is still allowing, in the B-2, 300 feet height; that the only reason that this ordinance was passed was because of the pressure of the citizens of that community; that this was not an ordinary piece of legislation.
In our opinion, to permit damages for development costs is not only unprecedented but would also be unsound policy. Were we to affirm the award of damages, the City would be unable to act, if each time it sought to rezone an area of land it feared judicially forced compensation. Monetary awards in zoning disputes would inhibit governmental experimentation in land use controls and have a detrimental effect on the community's control of the allocation of its resources. An article dealing with inverse condemnation, another type of monetary award in downzoning cases states:
The weighing of costs and benefits is essentially a legislative process. In enacting a zoning ordinance, the legislative body assesses the desirability of a program on the assumption that compensation will not be required to achieve the objectives of that ordinance. Determining that a particular land use control requires compensation is an appropriate[2] function of the judiciary, whose function includes protection of individuals against excesses of government. But it seems a usurpation of legislative power for a court to force compensation. Invalidation, rather than forced compensation, would seem to be the more expedient means of remedying legislative excesses. (Footnotes omitted.)
Fulham and Scharf, "Inverse Condemnation: Its Availability in Challenging the Validity of a Zoning Ordinance", 26 Stanford L.Rev. 1439, 1450-51 (1974).
Prohibiting damages for development costs does not mean that a property owner must suffer an injury without compensation, for if the facts establish that the doctrine of equitable estoppel should apply to prevent the City from enforcing newly enacted prohibitive zoning, then the property owner is entitled to continue construction. Once the City is estopped from enforcing the new zoning, if it still feels the development must be halted, it must look to its powers of eminent domain. In order for the City to operate with any sense of financial responsibility the choice between continued construction and paying to have it stopped by condemnation, if possible, must rest with the City not property owners.
Accordingly, the order of the trial court granting damages for appellees development costs is reversed.
NOTES
[1] Trial court's Finding of Fact No. 8 reads:
8. On March 6, 1973, Bill No. 46, Draft 1, entitled "An Ordinance to Rezone a Portion of A-3 Apartment District Nos. R-8 and R-19 situated at Mokuleia, Waialua, Oahu, Hawaii to A-2 Apartment District No. R-64" was introduced in response to political pressure from certain residents in Waialua to prevent highrise construction in the area. Bill 46 (Draft 2) was subsequently enacted into law as Ordinance 4145 effective May 15, 1973. Buildings constructed in an area zoned A2 may have a maximum height of 40 feet according to Comprehensive Zoning Code Section 21-613. The building which Plaintiffs proposed to erect conformed to the height and area limitations of an A-3 district but would not be permitted in an A-2 district.
[2] A footnote, No. 53, of the text states:
The expenditure of public funds is an inappropriate function for the judicial branch, which is unable to consider and weigh community interests as well as is the legislative branch. Courts also lack the flexibility of legislatures, as a court is faced with an all-or-nothing decision, while a legislative body has a wider range of alternatives. Professor Van Alstyne, however, suggests that a complete range of intermediate positions is possible even for courts. [Citations omitted.] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1472496/ | 996 S.W.2d 594 (1999)
Robert Leroy ARD, Appellant,
v.
James Donald JENSEN, Defendant,
and
The Brunswick Corporation, and Glastron, Inc., Respondents.
No. WD 56041.
Missouri Court of Appeals, Western District.
May 4, 1999.
As Modified June 24, 1999.
Motion for Rehearing and/or Transfer Denied June 29, 1999.
Application for Transfer Denied August 24, 1999.
*595 Alan Kimbrell, St. Louis, for Appellant.
Peter Daniel, James Seigfriend, Jr., Kansas City, for Respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 1999.
SPINDEN, Presiding Judge.
Robert Leroy Ard appeals the circuit court's granting summary judgment in favor of The Brunswick Corporation and Glastron, Inc., on the ground that federal law preempted Ard's lawsuit regarding propeller guards. Ard suffered injuries on May 29, 1988, when a motorboat, driven by James Donald Jensen,[1] backed over him while he was in the water preparing to ski. Ard sued Brunswick and Glastron, alleging that a Brunswick motor and a Glastron boat were defectively designed and unreasonably dangerous because Brunswick and Glastron did not install a propeller guard on the boat's motor.[2] The circuit court concluded that the Federal Boat Safety Act (FBSA) preempted Ard's claim. We *596 reverse the circuit court's judgment and remand for further proceedings.
Brunswick's and Glastron's motion for summary judgment alleged that Ard's claim was preempted by federal law and, therefore, violated the supremacy clause in Article VI of the United States Constitution.[3] Ard argues, however, that Congress did not intend to preempt, expressly or impliedly, his claim against Brunswick and Glastron under the FBSA. We agree.
In 1971, Congress enacted the FBSA to "improve boating safety by requiring manufacturers to provide safer boats and boating equipment to the public through compliance with safety standards to be promulgated by the Secretary of the Department in which the Coast Guard is operatingpresently the Secretary of Transportation." S. REP. NO. 92-248, 92nd Cong., 1st Sess. (1971), reprinted in 1971 U.S.C.C.A.N. 1333. Pursuant to 46 U.S.C. § 4302, Congress authorized the Secretary of Transportation to promulgate regulations establishing minimum safety standards for recreational boats. Congress also authorized the Secretary of Transportation to delegate to a person, agency or organization "any work, business, or function related to the testing, inspection, and examination necessary for compliance enforcement and for the development of data to enable the Secretary to prescribe regulations under section 4302[.]" 46 U.S.C § 4303. The Secretary acted on that authority and delegated to the Coast Guard's commandant the duty of "[c]arry[ing] out the functions vested in the Secretary by the ... Federal Boat Safety Act of 1971[.]" 49 C.F.R. § 1.46(n)(1).
In 1988, the Coast Guard directed the National Boating Safety Advisory Council to consider whether the Coast Guard should implement federal requirements mandating the use of propeller guards. After hearings and research, the council recommended that "[t]he U.S. Coast Guard should take no regulatory action to require propeller guards." National Boating Safety Advisory Council, Report of the Propeller Guard Subcommittee 24 (1989). The Coast Guard, through a letter written by Rear Admiral Robert T. Nelson, chief of the Office of Navigation, Safety and Waterway Services, to A. Newell Garden, chairman of the National Boating Safety Advisory Council, adopted the council's recommendations concerning propeller guards. The letter said:
The regulatory process is very structured and stringent regarding justification. Available propeller guard accident data do not support imposition of a regulation requiring propeller guards on motorboats. Regulatory action is also limited by the many questions about whether a universally acceptable propeller guard is available or technically feasible in all modes of boat operation. Additionally, the question of retrofitting millions of boats would certainly be a major economic consideration. The Coast Guard will continue to collect and analyze data for changes and trends.... The Coast Guard will also review and retain any information made available regarding development and testing of new propeller guard devices or other information on the state of the art.
Brunswick and Glastron contend that Nelson's letter triggered federal preemption of the issue of propeller guards.
The FBSA has two provisions which pertain to preemption: 46 U.S.C. §§ 4306 and 4311(g). Section 4306 says:
*597 Unless permitted by the Secretary under section 4305 of this title, a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment (except insofar as the State or political subdivision may, in the absence of the Secretary's disapproval, regulate the carrying or use of marine safety articles to meet uniquely hazardous conditions or circumstances within the State) that is not identical to a regulation prescribed under section 4302 of this title.
Section 4311 (g) says, "Compliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law."
The issue in this case is whether Congress intended to preempt Ard's common law claim.[4] We conclude that it did not.
The supremacy clause accords Congress the power to preempt state law so long as Congress is legislating according to power enumerated to it by Article I. When analyzing the supremacy clause, however, courts should begin "`with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.'" Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)) (emphasis added). Thus, in considering areas which states have traditionally governed through their police powers, we certainly presume that a narrow interpretation of a preemption clause is the proper one. Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). The overarching principle, of course, is that "`"[t]he purpose of Congress is the ultimate touchstone" `" in every preemption case. Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (citations omitted).
Congress' intention is either "`explicitly stated in the statute's language or implicitly contained in its structure and purpose.'" Id. (quoting Jones v. Rath Packing Company, 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977)). Implied preemption arises if Congress expresses an intention to regulate a field of conduct exclusively or if a state law conflicts with a federal law. Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. If, however, Congress has considered the preemption issue and has included an express preemption clause in the federal statute and that clause "provides a `reliable indicium of congressional intent with respect to state authority,' " "`there is no need to infer congressional intent to pre-empt state laws from the substantive provisions' of the legislation." Id. at 517, 112 S.Ct. 2608 (citations omitted).[5]
*598 Congress expressed its intention to preempt state laws and regulations governing boat safety by including a preemption clause in the FBSA. FBSA's § 4306 says that "a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment ... safety standard or imposing a requirement for associated equipment ... that is not identical to a regulation prescribed under section 4302 of this title." This means that the only laws or regulations which state regulatory bodies may establish concerning boat safety are those which are identical to the regulations prescribed by the Secretary. Congress, however, made an exception. In § 4311(g), it clearly articulated its intent that the FBSA not exempt common law claims. Both of these clauses are preemption clauses in the material sense of the term because both explicitly deal with the subject of what is and is not preempted. See Loulos v. Dick Smith Ford, Inc., 882 S.W.2d 149, 151 (Mo.App.1994).
We must decide, therefore, whether § 4311(g) is a reliable indicium of Congress' intention regarding preemption. Aiding our consideration is a presumption that what Congress intended to accomplish is articulated in the ordinary meaning of its statutes' language. Mills Music, Inc. v. Snyder, 469 U.S. 153, 164, 105 S.Ct. 638, 83 L.Ed.2d 556 (1985).
Congress could not have been any more clear in § 4311(g) that it did not want the FBSA to be a shield from common law liability. The statute says this explicitly, and the legislative history emphasizes it:
This section is a Committee amendment and is intended to clarify that compliance with the Act or standards, regulations, or orders promulgated thereunder, does not relieve any person from liability at common law or under State law. The purpose of the section is to assure that in a product liability suit mere compliance by a manufacturer with the minimum standards promulgated under the Act will not be a complete defense to liability.
S. Rep. No. 92-248, 92nd Cong., 1st Sess. (1971), reprinted in 1971 U.S.Code Cong. & Admin.News pp. 1333, 1352.
We conclude that Congress wanted to spare boat manufacturers from state laws which differed from the regulations which the Secretary of Transportation imposed.[6] Congress, however, aware of the common *599 law as it existed when it enacted the FBSA and the duties it imposed on boat manufacturers, did not want the FBSA to obviate those duties. Sparing boat manufacturers from being "stretched" in opposite directions by state and federal regulators seemed proper to Congress, but it seemed improper to allow manufacturers to build boats which a jury would find to be so likely to cause injury to its users that its manufacturer should have foreseen the likelihood of its boat's causing injury and should not have put the boat in the stream of commerce.
Brunswick and Glastron argue that we should not interpret § 4311(g) as preserving Ard's claim because such an interpretation would eviscerate the FBSA's preemption clause. Not so. Congress intended to prohibit state regulatory agencies from establishing or enforcing laws or regulations requiring propeller guards unless the federal government had an identical regulation. That much is quite clear. Congress, however, explicitly stated that it did not want the FBSA to shield manufacturers from state common law claims. Congress obviously wanted the common law to be the base line for imposing duties on manufacturers. It did not want to permit manufacturers to escape accountability for manufacturing boats which breached the duties imposed by common law, but it used the FBSA to authorize the Secretary of Transportation to require more of the manufacturers than the common law required. This does not eviscerate the FBSA's preemption clause. Indeed, adopting Brunswick's and Glastron's interpretation would eviscerate Congress' intent that the common law be the minimum standard to be built upon by the Secretary's regulations.
We understand, of course, that the common law has been interpreted as subsumed within the terms "state laws and regulations." Cipollone, 505 U.S. at 521-22, 112 S.Ct. 2608 (Stevens, J., plurality opinion).[7] In this instance, however, Congress specifically said in § 4311(g) that it was making an exception for common law claims. "We must give effect to this plain language unless there is good reason to believe Congress intended the language to have some more restrictive meaning." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Moreover, "the presumption against pre-emption might give good reason to construe the phrase `state law' in a pre-emption provision more narrowly than an identical phrase in another context[.]" Cipollone, 505 U.S. at 522, 112 S.Ct. 2608 (Stevens, J., plurality opinion).
Brunswick and Glastron contend that "general savings clauses should not be construed in an indiscriminate fashion so as to allow common law actions to subvert a federal regulatory scheme."[8] In support, they rely on Texas and Pacific Railway *600 Company v. Abilene Cotton Oil Company, 204 U.S. 426, 446, 27 S.Ct. 350, 51 L.Ed. 553 (1907), in which the United States Supreme Court held that a general savings clause could not be read to save common law rights, "the continued existence of which would be absolutely inconsistent with the provisions of the act." First, Brunswick and Glastron seemingly overlook the adverb "absolutely." Second, for the reasons mentioned earlier, Congress' allowing common law claims is not inconsistent with the FBSA's preemption clause.
Although one of Congress' purposes was to provide uniformity[9] of boat and equipment safety standards in interstate commerce, S. Rep. No. 92-248, 92nd Cong., 1st Sess. (1971), reprinted in 1971 U.S.Code Cong. & Admin.News, pp. 1333, 1341, it made clear its intent not to provide manufacturers with a complete defense to product liability suits by allowing a manufacturer to show compliance with the FBSA. The effect of allowing a common law action on an issue such as whether a boat motor is defectively designed and unreasonably dangerous due to the lack of a propeller guard does not result in a state requirement which would undermine Congress' goal of national uniformity. Congress wanted to control whether installation of propeller guards should be mandatory; it did not want to control whether a manufacturer could be held liable for a defective design or unreasonable danger because of a lack of propeller guard. It specifically announced that it wanted to allow such claims. Allowing Brunswick and Glastron to use the Coast Guard's decision not to require propeller guards to shield them from tort liability would, in essence, be the same as allowing them to assert as a defense that it complied with the minimum standards of the FBSA, expressly forbidden by Congress.
Brunswick and Glastron respond that we should interpret § 4311(g) as preventing a manufacturer from using compliance with the minimum safety standard as a defense against liability for defectively designed products that are actually installed. See Mowery v. Mercury Marine, Division of Brunswick Corporation, 773 F.Supp. 1012, 1017 (N.D.Ohio 1991). We find no such distinction in the words used by Congress. Congress chose broad language. Had Congress wanted to limit the type of common law claims to be allowed, it could have done so. We presume that Congress intended what the ordinary meaning of its statutes' language conveys. Mills Music, 469 U.S. at 164, 105 S.Ct. 638.
Brunswick and Glastron rely heavily on numerous federal and state cases holding that the FBSA preempts common law defective design claims based on the absence of a propeller guard.[10] Our conclusion, *601 however, is consistent with the overriding presumption when dealing with preemption cases: The presumption is against preemptionpreemption is the exception rather than the rule. "Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). We, therefore, conclude that, pursuant to § 4311(g), Congress expressed its intent that common law claims not be preempted. Because § 4311(g) provides a reliable indicium of congressional intent with respect to state authority, we need not engage in implied preemption analysis in this instance.[11] We, therefore, reverse the circuit court's entry of summary judgment and remand for further proceedings on Ard's claim concerning Brunswick's and Glastron's failure to install a propeller guard on Jensen's boat.
EDWIN H. SMITH, Judge, and ALBERT A. RIEDERER, Judge, concur.
NOTES
[1] In a trial of Ard's claim against Jensen, a jury assessed Ard's damages at $5 million but found that Ard was 80 percent at fault. The circuit court entered judgment of $1 million for Ard. Neither Jensen nor Ard appeal this judgment.
[2] Ard also claimed that the "boat and its throttle/gear shift, linkage, cable and associated machinery and equipment for shifting, accelerating, and decelerating the motor were defectively designed and unreasonably dangerous[.]" The circuit court entered summary judgment on this claim in response to Brunswick's and Glastron's motion in which they contended that Ard had altered the throttle and shift mechanism after the accident and that Ard could not prove that the throttle and shift mechanism was defective and unreasonably dangerous when sold. Ard did not appeal this issue.
[3] The supremacy clause says, "This Constitution and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
[4] The parties agree that Ard's claim is a common law claim. Section 1.010, RSMo 1994, provides, "The common law of England and all statutes and acts of parliament made prior to the fourth year of the reign of James the First, of a general nature, which are not local to that kingdom and not repugnant to or inconsistent with the Constitution of the United States, the constitution of this state, or the statute laws in force for the time being, are the rule of action and decision in this state, any custom or usage to the contrary notwithstanding, but no act of the general assembly or law of this state shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law, or with such statutes or acts of parliament; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof." The Supreme Court, however, noted in Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66, 74 (1935), that "[t]he common law continually expands with the progress of social development in order to meet the exigencies and usages that arise of necessity from this growth and progress of society."
[5] In Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995), the court said that Cipollone did not hold that implied preemption cannot exist when Congress has chosen to include an express preemption clause in a statute. The Myrick court said, "In Cipollone we did hold that the pre-emptive scope of the two statutes at issue was governed by the language in each Act. That conclusion rested on a familiar canon of statutory construction and on the absence of any reason to infer any broader pre-emption.... The fact that an express definition of the pre-emptive reach of a statute `implies'i.e. supports a reasonable inferencethat Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption. Indeed, just two paragraphs after the quoted passage in Cipollone, we engaged in a conflict pre-emption analysis of the Federal Cigarette Labeling and Advertising Act ... and found `no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common-law damages actions.' 505 U.S., at 518[, 112 S.Ct. 2608].... Our subsequent decisions have not read Cipollone to obviate the need for analysis of an individual statute's pre-emptive effects.... At best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule." Myrick, 514 U.S. at 287-89, 115 S.Ct. 1483.
[6] We recognize that the FBSA's savings clause also states that compliance with the FBSA "does not relieve a person from liability... under State law" and that a problem arises in determining what state law is preempted by § 4306's preemption clause and what state law is saved by the savings clause. Whether this is a contradiction, as it appears to be, is not an issue that we must address. We save that issue for a later case. Congress, however, specifically articulated its intent that the FBSA not exempt common law claims. It used the term "common law" only in the savings clause, and, as we noted, the general principle that "state law" usually includes the common law obviously does not apply here given Congress' clear expression that it does not.
[7] "`[State] regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.'" Cipollone, 505 U.S. at 521, 112 S.Ct. 2608 (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)). In Medtronic, 518 U.S. at 504, 116 S.Ct. at 2259-60, Justice Breyer said in his concurring opinion, "The effects of the state agency regulation and the state tort suit are identical. To distinguish between them for pre-emption purposes would grant greater power (to set state standards `different from, or in addition to' federal standards) to a single state jury than to state officials acting through state administrative or legislative lawmaking processes. Where Congress likely did not focus specifically upon the matter, ... I would not take it to have intended this anomalous result." In our case, however, Congress did focus specifically on the matter as evidenced by the savings clause.
[8] In Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), the Supreme Court held that "[a] general remedies savings clause cannot be allowed to supersede [a] specific substantive pre-emption provision[.]" The savings clause at issue in Morales was part of the Federal Aviation Act of 1958 and predated the preemption provision at issue which was part of the Airline Deregulation Act of 1978. The Court followed the rule of statutory construction that a specific statute governs a general one. The reasoning in Morales does not apply to our case because the savings clause at issue in our case is a part of the FBSA and is not a "general remedies savings clause."
[9] Uniformity, however, was not Congress' chief goal, as manifested in § 4306 which gave the Secretary of Transportation the authority to permit a state "to establish, continue in effect or enforce a law or regulation" regarding boat and equipment safety standards if the Secretary finds that the recreational vessel should be exempt under § 4305. Section 4305 says, "If the Secretary considers that recreational vessel safety will not be adversely affected, the Secretary may issue an exemption from this chapter or a regulation prescribed under this chapter." The legislative history acknowledges, "A right of disapproval ... is reserved to the Secretary to insure that indiscriminate use of state authority does not seriously impinge on the basic need for uniformity." S. Rep. No. 92-248, 92nd Cong., 1st Sess. (1971), reprinted in 1971 U.S.Code Cong. & Admin.News, pp. 1333, 1341. Hence, complete uniformity could not have been Congress' intent.
[10] See Carstensen v. Brunswick Corp., 49 F.3d 430 (8th Cir.), cert. denied, 516 U.S. 866, 116 S.Ct. 182, 133 L.Ed.2d 120 (1995); Lewis v. Brunswick Corp., 922 F.Supp. 613 (S.D.Ga. 1996), aff'd, 107 F.3d 1494 (11th Cir.1997); Moss v. Outboard Marine Corp., 915 F.Supp. 183 (E.D.Cal.1996); Davis v. Brunswick Corp., 854 F.Supp. 1574 (N.D.Ga.1994); Shield v. Bayliner Marine Corp., 822 F.Supp. 81 (D.Conn.1993); Shields v. Outboard Marine Corp., 776 F.Supp. 1579 (M.D.Ga.1991); Mowery v. Mercury Marine, Div. of Brunswick Corp., 773 F.Supp. 1012 (N.D.Ohio 1991); Ryan v. Brunswick Corp., 454 Mich. 20, 557 N.W.2d 541 (1997); Farner v. Brunswick Corp., 239 Ill.App.3d 885, 180 Ill.Dec. 493, 607 N.E.2d 562 (1992). Brunswick and Glastron also cite unpublished opinions: Silveroli v. Bayliner Marine Corp., No. CV 745828, slip op. (Cal.Super. Ct. Santa Clara Cty. Feb. 26, 1996); Greenwood v. Brunswick Corp., No. CV-90-973, slip op. (Maine Super. Ct. Cumberland Cty. Apr. 22, 1994); Denison v. Brunswick Corp., No. 91-041618-CZ, slip op. (Mich. Cir. Ct. Washtenaw Cty. July 17, 1992), aff'd, No. 15869 (Mich.Ct.App.1995); Parker v. Outboard Marine Corp., No. J90-0011(L), slip op. (S.D. Miss. Feb 28, 1991).
[11] Although Myrick, 514 U.S. at 289, 115 S.Ct. 1483, held that "[a]t best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption, it does not establish a rule," in this case, Congress' intent is clear. Hence, the Cipollone inference is applicable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2282235/ | 981 F.Supp. 969 (1997)
In re FORD MOTOR CO. BRONCO II PRODUCT LIABILITY LITIGATION.
Civil Action No. MDL 991.
United States District Court, E.D. Louisiana.
March 7, 1997.
Stephen B. Murray, Murray Law Firm, New Orleans, LA, Michael H. Ellis, Chehardy, Sherman, Ellis, Breslin & Murray, Metairie, LA, T. Roe Frazer, II, Richard A. Freeze, Langston, Frazer, Sweet & Freese P.A., Jackson, MS, Daniel E. Becnel, Jr., Becnel, Landry & Becnel, Reserve, LA, Patrick W. Pendley, Plaquemines, LA, Irwin B. Levin, Cohen & Malad, Indianapolis, IN, for Plaintiffs.
Colvin Gamble Norwood, Jr., McGlinchey, Stafford & Lang, New Orleans, LA, John Beisner, Brian D. Boyle, O'Melveny & Myers, Washington, DC, for Defendants.
MEMORANDUM AND ORDER
SEAR, Chief Judge.
Background
The captioned litigation has been pending before me since February 9, 1994, when five actions were transferred to this district by the Judicial Panel for Multidistrict Litigation ("JPML") for consolidated pretrial proceedings.[1] The litigation involves consumer actions asserting claims under the federal Magnuson-Moss Warranty Act and state law. Damages and equitable relief are sought for owners of Ford Bronco II vehicles marketed between 1983 and 1990, based on an alleged design defect that renders the vehicle unduly prone to roll over in normal driving conditions. Recovery is not sought for personal injury or death. The background of the cases has been set forth in detail in numerous prior orders and will be repeated here only as relevant.
*970 Following approximately four months of settlement negotiations, on or about January 28, 1997 two copies of a proposed settlement were delivered to my chambers. The proposed settlement was not filed in the record by counsel that day and, to date, still has not been filed in the record. At the time the documents were submitted, I assumed the motivation for this was to avoid publicity until the matter had been resolved. However, I soon learned that even before the proposed settlement was submitted to me, Alabama plaintiff counsel and representatives of Ford Motor Company had been interviewed and made statements to the press. Indeed, on January 30, news of the "new settlement" appeared in a number of newspapers across the country, including the Wall Street Journal.
I carefully reviewed the terms of the proposed settlement as well as the related orders and documents, including the proposed notice to be disseminated to putative class members. I also reviewed the various public statements made by the parties' counsel and representatives to the press. On January 30, 1997 I conducted a telephone conference with attorneys for plaintiffs and Ford Motor Company, at which time I verbally expressed my dissatisfaction with the proposed settlement. By minute entry dated January 31, 1997, I found that the proposed settlement was not sufficiently fair, reasonable and adequate to grant preliminary approval and allow dissemination of the proposed settlement to the class. I did not assign detailed written reasons for my ruling at that time. On February 14, 1997, I conducted another conference in chambers with local plaintiff counsel concerning problems with the settlement, but the problems were not resolved to my satisfaction at the conference.[2]
By correspondence dated March 3, 1997, Daniel Becnel, Jr., counsel for plaintiffs in the consolidated matter entitled Washington v. Ford Motor Company, who did not take part in the January 30, 1997 telephone conference or the February 14, 1997 conference, but with whom I have met in chambers and discussed the matter subsequently,[3] asks for written reasons why I found the proposed class action settlement not sufficiently fair, reasonable and adequate to allow dissemination of notice to the putative class members. I now respond to that request.
Discussion
Of utmost importance to my January 31, 1997 ruling is my previous rejection, on March 20, 1995, of a similar proposed settlement.[4] The March 20, 1995 ruling issued after I had entertained voluminous filings, accepted written objections from putative class members and held a fairness hearing. Some additional background is necessary. At the time the five core actions were transferred in 1994, the JPML advised that the parties were in a settlement posture and a proposed settlement would be forthcoming.[5] For this reason, I did not assume an immediate case management role, but rather waited for advices from counsel concerning the settlement. In July 1994, counsel notified me that a tentative settlement had been reached. Although I questioned the value of the settlement package a video, sun visor warning sticker, supplemental owner's guide, opportunity for a free safety inspection, and various inspection incentives nevertheless, on August 3, 1994, I preliminarily approved the proposed settlement solely for purposes of disseminating notice to the putative class members.
Notice was mailed to approximately 690,000 putative class members and published in USA Today. Approximately 109 class members filed written objections and 1,650 requested exclusion from the settlement. On November 8, 1994 I held a hearing concerning the fairness of the proposed settlement, at which I heard argument from counsel for both sides and at least one objecting plaintiff, *971 as well as expert testimony. I spent the next few months reviewing the voluminous submissions. On March 20, 1995, in a 23-page memorandum and order I rejected the proposed settlement because I considered the amount of attorney fees sought by two plaintiff attorneys[6] $4 million so excessive in relation to the scant discovery conducted by the attorneys and in relation to the benefit offered to class members that it suggested collusion between plaintiff and defense counsel.
After rejecting the settlement, I ruled on various follow-up matters and met with counsel over the next few months to coordinate pretrial deadlines. Several local attorneys became involved in the litigation and the Alabama plaintiffs chose to pursue their claims in state court[7] instead of in these consolidated proceedings. Between approximately September 1995 and September 1996, counsel's efforts were directed toward discovery and motion practice. However, at counsel's request, in October 1996 I stayed discovery and agreed to postpone ruling on a motion for class certification filed by plaintiffs until the parties had sufficient opportunity to amicably resolve the cases.
Counsel kept me advised of the progress of their negotiations, and I assisted in discussions as much as possible without commenting on the merits of the case.[8] Out of concern that I might be faced with the same issues that doomed the previous settlement, I required plaintiff counsel to submit estimates of the fees and expenses they would seek to recoup. Plaintiff counsel responded with in camera submissions, and from my calculation the total estimated lodestar for attorney fees and expenses was approximately $1.6 million. I advised plaintiff counsel that I considered this extremely high and they responded that, assuming a settlement was reached, they would accept any amount I found appropriate to award in attorney fees and expenses. The settlement papers submitted in late January 1997, shockingly, included a provision that plaintiff counsel would apply for an award of approximately $6 million in attorney fees and expenses, while noting that, assuming the Court approved the settlement, the Court would determine the actual amount awarded.
I have carefully reviewed all of the settlement documents delivered to my chambers. Unlike the posture of the case when the first settlement was before me, now at least one year has been devoted to discovery, which has been conducted by local plaintiff counsel and by defense counsel in these proceedings.[9] In spite of such effort, however, I find that the content of and circumstances surrounding the second settlement agreement suggest the presence of the same problems that plagued the previous settlement.
The content of the second settlement package differs in few respects from the previously offered package. The recently proposed settlement "utility vehicle package" includes (1) a safe driving and handling video concerning utility vehicles; (2) a supplemental owner's guide; (3) an on-product safety-related sticker; a limited complimentary vehicle inspection; and (4) an offer of cost-sharing by Ford for certain parts and repairs with those Bronco II owners whose vehicles are discovered to have been modified in a manner that alters handling characteristics or whose vehicles have worn suspension components. The cost sharing item is the only new aspect, and several items previously offered as "inspection incentives," e.g. a hand lantern and cellular phone, are no longer included in the package.
One factor that influenced my rejection of the first settlement was that the first settlement package provided none of the relief sought by plaintiffs in the Complaint, i.e., repayment of the Bronco II purchase price, compensation for diminution in value of the Bronco II, and/or an injunction requiring Ford to recall or retrofit all Bronco IIs.[10] The same is true of the second proposed *972 settlement package. The addition of the cost sharing item does not alter this finding. Even if consumers take advantage of the inspection and discounted repairs, the services offered will, at most, merely return the vehicles to their pre-modified condition a condition that the plaintiffs allege in their complaint is defective. Neither does the educational benefit, which plaintiff counsel laud, provide the relief sought in the complaint.
While I will avoid commenting on the merit or value of plaintiffs' claims[11] in addressing approval of the settlement, I must determine whether, accepting that there is some level of uncertainty in plaintiffs' case, plaintiffs nevertheless are receiving sufficient consideration in view of the relief requested in the complaint and in exchange for the complete release of all of their consumer-related claims. I am not convinced that they are receiving something of sufficient value here. Neither the settlement agreement, notice, or any other related documents purports to place a monetary value on the package. Counsel for plaintiffs and Ford have candidly admitted that it is difficult if not impossible to place such a value on the package. Nevertheless, they point to the inspection and cost-sharing component as having some monetary value. However, the cost-sharing component contemplates expenditure of what ultimately may be hundreds, and possibly thousands, of dollars of the putative class members' own money at a Ford or Lincoln/Mercury dealer, representing what at least appears to be more of a potential benefit to Ford than to the putative class members.
Finally, the attorney fee and expense petition that plaintiff counsel plan to submit for approval references a sum so far out of the range of what I consider reasonable as to suggest that, despite actual discovery effort by local plaintiff counsel, collusion problems remain. As already explained, when plaintiff counsel submitted their fee and expense estimate in October 1996, which totaled approximately $1.6 million, I told them I found it incomprehensible that the award would approach anywhere near that sum. Three months later, the settlement submitted for preliminary approval cited $6 million as the figure plaintiff counsel would request in fees and expenses. This is $2 million more than the sum which, in 1995, I found unconscionable and suggestive of collusion. It is $4.4 million more than the $1.6 million estimate submitted by plaintiff counsel in October 1996, an estimate I already considered excessive even in view of the discovery that had taken place since the 1995 settlement.
Local plaintiff counsel has attempted to explain the $4.4 million discrepancy by pointing out that the October 1996 estimate did not include the estimated fees and expenses of Alabama plaintiff counsel, whose clients desire to participate in the settlement although they have not otherwise participated in these consolidated pretrial proceedings. Plaintiff counsel further urges that the difference now is that they agree that despite the figures sought by them as attorney fees and expenses, ultimately I have the authority to award whatever sum I find appropriate and reasonable. I simply am not convinced that such a provision in the settlement agreement will remove the taint in the settlement negotiations suggested by the terms of the meager recovery the plaintiff class receives when compared to the fee request. Although local plaintiff counsel advise that they are willing to submit to binding arbitration of the fee issue, Alabama counsel refuse to do so, suggesting that the settlement provision declaring counsel's deference to my award is effectively meaningless. In essence, then, I am in the same position I was in two years ago.
Whereas two years ago I was willing to approve the settlement as a preliminary matter and engage in the entire fairness hearing process, to do so again would be a costly and futile process under the circumstances. I therefore chose not to approve the proposed settlement even preliminary, and so ordered on January 31, 1997.
NOTES
[1] Bates, et al. v. Ford Motor Co., 94-0537 (M.D.La.); Lewis, et al. v. Ford Motor Co., 94-0538 (S.D.Miss); Armistead, et al. v. Ford Motor Co., 94-0539 (W.D.N.C.); Luis, et al. v. Ford Motor Co., 94-0540 (S.D.Fla.); Vitrano, et al. v. Ford Motor Co., 94-2537 (E.D.La.).
[2] Ford waived appearance at this conference, as the purpose was to address concerns directed exclusively to the attorney fee sought by plaintiff counsel.
[3] Specifically, I met with Mr. Becnel and counsel for Ford Motor Company in chambers on February 25, 1997.
[4] A copy of the March 20, 1995 Memorandum and order is annexed hereto as Exhibit A. [Not included for publication, See 1995 WL 373061.]
[5] Only six months had elapsed between the filing of the various actions and the beginning of settlement negotiations. The settlement negotiations lasted for approximately seven months.
[6] Plaintiff class counsel at the time were Richard A. Freese of Birmingham, Alabama and T. Roe Frazer II of Jackson, Mississippi.
[7] The Alabama state court action, Rice v. Ford Motor Co., is pending in Greene County court on behalf of a class of Alabama purchasers.
[8] I held status conferences on October 2 and November 7 and 15, 1996.
[9] Alabama counsel have not participated in the discovery or motion practice in these consolidated proceedings, although they have sought to take part in the proposed global settlement.
[10] March 20, 1995 Memorandum and Order (Record Doc. 160) at pp. 13-14.
[11] I find particularly troubling certain public statements made by Alabama plaintiff counsel to the effect that it is impossible to prove that their clients have sustained any damage. Milo Geyelin, Ford Reaches a New Settlement in Bronco II Rollover Litigation, Jan. 30, 1997 at B12. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2002854/ | 822 F.Supp. 81 (1993)
Dennis SHIELD, Administrator of the Estate of Daniel Edward Shield
v.
BAYLINER MARINE CORP.
Civ. No. N-87-221 (WWE).
United States District Court, D. Connecticut.
May 12, 1993.
*82 Donald G. Walsh, Walsh, Burt & Associates, New Haven, CT, Vincent R. Falcone, Falcone & Lyons, West Haven, CT, for Dennis Shield.
John R. McGrail, McGrail, Carroll & Sheedy, Dennis W. Gillooly, Sperandeo & Donegan, New Haven, CT, for Bayliner Marine Corporation.
Frederick W. Danforth, Jr., Danforth, Cleary & Grenier, Nada Morin, Law Offices of Nada K. Sizemore, New Haven, CT, for John H. Paul.
RULING ON MOTION FOR PARTIAL SUMMARY JUDGMENT
EGINTON, Senior District Judge.
FACTS
In June 1985, the decedent Daniel Edward Shield fell from the bow of a boat manufactured by defendant Bayliner Marine Corp. and was fatally injured. The accident occurred on the Potomac River, which is a state territorial waterway. At the time of his death, Daniel was fourteen years old and unemployed.
As administrator of the estate of his son, plaintiff Dennis Shield settled the estate's claims against the owner/operator of the boat for the sum of $299,000. In the same capacity, plaintiff filed this survival action against the defendant seeking (1) funeral expenses, (2) conscious pain and suffering of the decedent, (3) lost future earnings, and (4) loss of the enjoyment of life. Liability is based on both negligence and strict liability.
Defendant has moved for partial summary judgment under Fed.R.Civ.P. 56 on the grounds that plaintiff cannot recover non-pecuniary losses in a maritime wrongful death action and that defendant cannot be held strictly liable for the absence of a propeller guard.
DISCUSSION
Summary Judgment Standard
A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. American International Group, Inc. v. London American International Corp., 664 F.2d 348, 351 (2d Cir.1981). In determining whether a genuine factual issue exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).
Applicable Law
Although plaintiff's complaint was brought under both diversity jurisdiction, 28 U.S.C. § 1332, and admiralty jurisdiction, 28 U.S.C. § 1333, it is clear that general maritime law applies in this case. First, the Potomac River is a navigable waterway for purposes of admiralty jurisdiction. Second, the accident occurred while the decedent was *83 taking a pleasure ride on a boat, a traditional maritime activity. The fact that plaintiff relies partly on diversity jurisdiction does not affect the rule that maritime law applies. Thus, to the extent plaintiff seeks to recover under Connecticut state law, his claim must be dismissed. Wahlstrom v. Kawasaki Heavy Ind., Ltd., 800 F.Supp. 1061, 1062-63 (D.Conn.1992); Preston v. Frantz, slip op., No. B-88-285 (WWE) (Nov. 16, 1992).
In its motion, defendant characterizes plaintiff's claim as a wrongful death claim. However, this court views the complaint as a survival action. Generally, a wrongful death action seeks to recover damages to beneficiaries resulting from the decedent's death. In contrast, a survival action is designed to recover damages the decedent could have recovered but for his death. The damages cited by plaintiff relate to decedent, not to his beneficiaries. Accordingly, this court will analyze the motion under the general maritime law regarding survival actions. Wahlstrom, 800 F.Supp. at 1062-63.
Damages Recoverable in Maritime Survival Action
As stated above, plaintiff seeks to recover for (1) funeral expenses, (2) conscious pain and suffering of the decedent, (3) lost future earnings, and (4) loss of the enjoyment of life. Defendant concedes that plaintiff is entitled to funeral expenses, but argues that general maritime law prohibits recovery for the other non-pecuniary losses plaintiff alleges.
Although the damages recoverable in a maritime survival action are not well defined in the Second Circuit, the majority of courts that have considered this issue have held that pre-death pain and suffering is compensable. Evich v. Morris, 819 F.2d 256, 258 (9th Cir.1987), cert. denied, 484 U.S. 914, 108 S.Ct. 261, 98 L.Ed.2d 218 (1987); Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (5th Cir.1984); Barbe v. Drummond, 507 F.2d 794, 799-800 (1st Cir. 1974); Spiller v. Thomas M. Lowe, Jr. & Assoc., Inc., 466 F.2d 903, 911 (8th Cir.1972); Preston, slip op., No. B-88-285 (WWE) (Nov. 16, 1992); Cf. In Re Inflight Explosion, 778 F.Supp. 625, 635 (E.D.N.Y.1991), rev'd on other grounds, 975 F.2d 35 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1944, 123 L.Ed.2d 650 (1993). Following these authorities, plaintiff is entitled to recover conscious pain and suffering upon sufficient proof of such suffering.
Without deciding whether to recognize a general maritime right of survival, the Supreme Court in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), stated that such an action would not include recovery for lost future income. See also Miles v. Melrose, 882 F.2d 976, 987 (5th Cir.1989) (holding that uniformity of maritime law is not served by allowing recovery for future lost wages in general maritime survival action). But see Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987), cert. denied, 484 U.S. 914, 108 S.Ct. 261, 98 L.Ed.2d 218 (1987) (holding that humane and liberal character of admiralty law served by permitting non-dependants to recover lost future wages in general maritime survival action). Following Miles, this court in Preston held that lost future wages are not recoverable in a maritime survival action. Consistently, plaintiff cannot recover lost future wages in this action.[1]
The last damages issue to be addressed is whether loss of enjoyment of life is recoverable in a general maritime survival action. Analyzing a claim brought under the Warsaw Convention and Death On the High Seas Act ("DOSHA"), 46 U.S.C. § 761 et seq., In Re Korean Air Lines Disaster, 807 F.Supp. 1073, 1080-83 (S.D.N.Y.1992), considered federal survival actions in general and held that "[l]oss of the quality or enjoyment of life is not a claim that has typically survived the victim." Neither DOSHA nor the Jones Act, 46 U.S.C. § 688, provide for recovery of enjoyment of life. Adhering to the goal of uniformity in maritime law, plaintiff may not recover damages for loss of enjoyment of life merely because the decedent was not a seaman and died in territorial *84 waters. See Miles, 498 U.S. 19, 111 S.Ct. 317.
Strict Liability for Lack of Propeller Guard
Count II of the Complaint seeks recovery under a theory of strict liability for, among other things, the absence of a propeller guard. Generally, the Federal Boat Safety Act of 1971 ("FBSA"), 46 U.S.C. § 1451 et seq., sets forth exclusive rules regarding boat safety. State laws that prescribe different safety measures are preempted by the FBSA. Shields v. Outboard Marine Corp., 776 F.Supp. 1579, 1581 (M.D.Ga.1991). Shields held that plaintiff could not recover under state law for defendant's failure to provide a propeller guard because the FBSA governed and did not require propeller guards. Similarly, Mowery v. Mercury Marine, 773 F.Supp. 1012, 1013-16 (N.D.Oh. 1991), held that the FBSA preempted a design defect claim based upon the failure to provide a propeller guard. Adopting the reasoning in Shields and Mowery, plaintiff's claim that defendant is strictly liable for designing and manufacturing a boat without a propeller guard must be dismissed.
CONCLUSION
For the reasons set forth above, defendant's motion for partial summary judgment [91-1] is GRANTED as to plaintiff's claims for lost future income and loss of enjoyment of life but DENIED as to funeral expenses and conscious pain and suffering. In addition, defendant's motion is GRANTED as to plaintiff's claim of strict liability based on the absence of a propeller guard.
NOTES
[1] Similarly, plaintiff is barred from recovering lost future income in general maritime wrongful death cause of action. Wahlstrom, 800 F.Supp. at 1065. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2569883/ | 188 P.3d 432 (2008)
221 Or. App. 78
STATE Of Oregon, Plaintiff-Respondent,
v.
Justin Joe MARTIN, Defendant-Appellant.
03C-40842, 04C-41831 A129854 (Control), A129855.
Court of Appeals of Oregon.
Submitted September 27, 2007.
Decided July 2, 2008.
*433 Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and John L. Susac, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.
WOLLHEIM, J.
Defendant appeals a judgment revoking his probation, arguing that the trial court erred in revoking his probation based only on its finding that he was not benefitting from probation. Defendant acknowledges that he did not preserve the asserted error in the trial court but contends that we should review it as error apparent on the face of the record. ORAP 5.45(1). As we explain, the asserted error is not reviewable because the legal point is not obvious; rather, it is reasonably in dispute. Accordingly, we affirm.
The relevant facts are undisputed. Defendant pleaded guilty to two counts of attempted sexual abuse in the first degree, ORS 161.405 and ORS 163.427, and was sentenced to 60 months' probation. The conditions of probation included "not hav[ing] contact with male or female persons under the age of 14." The state subsequently sought an order revoking defendant's probation on the grounds that (1) defendant had had contact with minors, and (2) defendant was not benefitting from probation.
At the probation revocation hearing, the trial court found that the state had failed to prove that defendant had been in contact with minors. However, the court found that defendant was "not benefitting from his probation." On that ground alone, the court concluded that defendant violated his probation, revoked probation, and sentenced him to the custody of the Department of Corrections.
On appeal, defendant argues, for the first time, that, pursuant to OAR XXX-XXX-XXXX, the court has authority to revoke probation only if it concludes that defendant violated a condition of probation or participated in new criminal activity. Because neither prerequisite *434 was met here, defendant argues that the trial court erred in revoking his probation based only on its finding that defendant was not benefitting from probation. Defendant acknowledges that he failed to preserve that contention, but he urges this court to review it as plain error. ORAP 5.45(1).
As a general rule, a claim of error must be preserved in the trial court to obtain our review. However, pursuant to ORAP 5.45(1), appellate courts have discretion to consider errors of law that are "apparent on the face of the record." For an error to be "apparent on the face of the record," i.e., plain error, the error must satisfy three criteria: (1) it must be an error of law; (2) it must be "apparent," meaning the legal point must be obvious, that is, "not reasonably in dispute"; and (3) it must appear on the face of the record, meaning the court need not go outside the record or choose between competing inferences to identify the error. State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). If those three criteria are satisfied, we must then determine whether to exercise our discretion to consider the error. Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991). That decision "should be made with utmost caution" because reviewing unpreserved errors is "contrary to the strong policies requiring preservation and raising of error." Id.
Here, the parties' arguments focus on the second plain error requirementwhether the asserted error is "obvious, not reasonably in dispute." Brown, 310 Or. at 355, 800 P.2d 259. Defendant posits that, pursuant to OAR XXX-XXX-XXXX and State v. Buehler, 206 Or.App. 167, 136 P.3d 64 (2006), it is obvious that the trial court erred in revoking his probation. According to defendant, "a trial court's authority to revoke probation is contingent upon it first making a valid determination that the offender either violated a condition of his probation or participated in new criminal activity. Absent that initial determination, the trial court has no authority to revoke the offender's probation." (Citation omitted.) The state responds that the claimed error is not "obvious" because the proper construction of OAR XXX-XXX-XXXX is reasonably in dispute. We agree with the state.
OAR XXX-XXX-XXXX provides:
"The decision to revoke probation is discretionary and may be exercised upon a finding that the offender has violated one or more of the conditions of probation, or that the offender has participated in new criminal activity."
According to defendant, the language of OAR XXX-XXX-XXXX is plain. To illustrate that point, defendant relies on Buehler in which we stated, "OAR XXX-XXX-XXXX provides that a trial court may, in its discretion, revoke an offender's probation if it finds that the offender has either (1) violated the terms of his probation, or (2) participated in `new criminal activity' since being put on probation" 206 Or.App. at 171, 136 P.3d 64.
In Buehler, however, as the state points out, the issue was not whether OAR XXX-XXX-XXXX precludes revocation of probation on any basis other than a violation of a condition of probation or participation in new criminal activity. In Buehler, the issue was whether the trial court's upward dispositional departure sentence was within the "statutory maximum," as that term is defined in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The state argued that the "statutory maximum" includes a "probationary sentence plus the six months' imprisonment and 24 months' post-prison supervision that a court is also authorized to impose should the court decide to revoke probation." Buehler, 206 Or.App. at 170, 136 P.3d 64. It was in that context that we cited OAR XXX-XXX-XXXX to emphasize that "[a] court's authority to revoke probation is therefore entirely contingent on the existence of facts that, by their nature, can occur only after the offender has already been sentenced to probation." Id. at 171, 136 P.3d 64 (emphasis in original). Based on that reasoning, we concluded that "if the presumptive sentence is probation, then the relevant statutory maximum, as that term is defined in Blakely, is the appropriate period of probation, and nothing more." Id. Accordingly, Buehler does not resolve to any extent much less beyond reasonable disputethe legal point raised here.
*435 In the state's view, OAR XXX-XXX-XXXX can reasonably be interpreted to grant the trial court discretion to revoke probation if it finds that the offender is not benefitting from probation, because the first clause of OAR XXX-XXX-XXXX indicates that "[t]he decision to revoke probation is discretionary." Because OAR XXX-XXX-XXXX does not expressly indicate that the two grounds listed in the rule are the only grounds for revocation, the state argues that "it is reasonable to read the rule as not prescribing the exclusive grounds for revocation but, instead, merely stating permissive grounds for revocation." (Emphases in original.) The state's reading of OAR XXX-XXX-XXXX, regardless of whether it is ultimately correct or incorrect, is at least plausible.
Another factor also suggests that the legal point at issue here is reasonably in dispute. Historically, a finding that a person is not benefitting from probation has been recognized as a basis for revoking probation. In Barker v. Ireland, 238 Or. 1, 4, 392 P.2d 769 (1964), the Supreme Court explained, "It is not necessary to revocation that the person on probation be convicted of a new crime, but only that the trial judge be satisfied that the purposes of probation are not being served, or that the terms thereof have been violated." The reasoning in Barker appears to be based on the legislative intent of former ORS 137.550 (1963), renumbered as ORS 137.545 (1999).[1]See Barker, 238 Or. at 3-4, 392 P.2d 769.
Although Barker's interpretation of former ORS 137.550 is not controlling, it is relevant in determining the meaning of OAR XXX-XXX-XXXX.[2] Specifically, the legislature in approving OAR XXX-XXX-XXXX may have intended to supplement the Supreme Court's interpretation of former ORS 137.550 in Barker or may have intended to overrule it. That inquiry is not resolved by looking only at the text of OAR XXX-XXX-XXXX. The concurrence dismisses Barker on the ground that it was decided under a statutory context that "is different" from the statutory context at play in this case. 221 Or.App. at 90, 188 P.3d at 439 (Sercombe, J., concurring). The concurrence does not explain why the subsequent enactment of OAR XXX-XXX-XXXX makes the Supreme Court's holding in Barker a nullity. We need not make that determination here, where, in the context of an unpreserved claim of error, the question before us is whether the legal point raised is "obvious," that is, "not reasonably in dispute." Brown, 310 Or. at 355. 800 P.2d 259. In that context, we conclude that Barker is further evidence of a reasonable dispute as to whether the trial court erred in revoking defendant's probation in this case.
We need not resolve whether the trial court was authorized to revoke defendant's probation based on its finding that defendant was not benefitting from probation. The question before us is only whether the legal point is open to reasonable dispute. Given that (1) defendant's reliance on Buehler as controlling authority is misplaced; and (2) the state's contrary construction of OAR XXX-XXX-XXXX, whether correct or incorrect, is reasonable, we conclude that there is a reasonable dispute whether the trial court's revocation in this case was error.[3] Because *436 the legal point raised is not obvious, the error, if any, is not plain and we therefore cannot review it.
Affirmed.
SERCOMBE, J., concurring,
The majority opinion concludes that any error in revoking defendant's probation was not plain because the revocation authority of the trial court under OAR XXX-XXX-XXXX is not apparent and could be disputed. 221 Or.App. at 84, 188 P.3d at 435-36. In my view, the rule indisputably confines the authority of the trial court to revoke probation to circumstances not present in this case. However, despite the trial court's error in exceeding its authority under the rule, the court should not exercise its discretion to reverse the probation revocation judgment. Defendant's failure to object to the state's motion to revoke probation because "the defendant is not benefitting from probation," likely affected the nature of the charges and the evidence presented at the probation violation hearing. It would not be just to allow defendant to contest the sanction or revocation because the proceedings were narrowed by his omission. Because of that, I would conclude that this is not a case in which the court properly should exercise its discretion to consider the plain error and, therefore, concur in affirming the judgment.
On February 11, 2004, defendant was sentenced to 60 months' probation for his conviction of two counts of attempted sexual abuse in the first degree, ORS 163.427. His conditions of probation, among other restrictions, required defendant to take polygraph examinations "early in his intervention to properly plan his treatment regimen." The conditions also forbade defendant from having "contact with male or female persons under the age of 14" and from engaging "in activities that will bring him in close contact with children." More particularly, Condition 21 required:
"The offender will not frequent places where children or large numbers of people congregate, i.e., parks, playgrounds, schools, etc., until his actual range of deviant interest can be ascertained. This may be altered following the completion of the full disclosure polygraph procedure."
Defendant was sanctioned with 60 days in jail in October 2004 because of an admitted violation of the conditions on associating with minors and his probation was continued.
The current proceedings arose from claimed associations with children by defendant at the Salem transit mall. The state moved to show cause why defendant's probation should not be revoked because defendant "had contact with minors" and was "not benefitting from probation." There was indirect evidence at the hearing that defendant met with children. There was, however, uncontroverted evidence that defendant had not taken the polygraph examination required by his conditions of probation. Following presentation of the evidence, defendant's counsel argued that the "contact with minors" charge was not proved and that defendant was employed and in a position to comply with his probation conditions. The trial court revoked the probation and stated:
"[W]hat bothers me the most is it appears to me [defendant's] attitude that he's always going to ask after the fact. If he had taken a full disclosure polygraph * * * he could have then asked, `Can I work at the State Fair?' `Can I go to the transit mall?' *437 `Can I ride the buses?' `Can I be around 14-year-olds?' But you didn't do that.
"And so my finding today is going to be, I'm going to find thatbased upon the fact that it is hearsay within hearsay, I'm going to find that the State has not proven the contact with the minors, but I am going to find that [defendant] is not benefitting from his probation, based upon a preponderance of the evidence and the testimony here today, and the evidence in the file. Therefore, I'm going to find him in violation of his probation on one count."
Defendant argues in his appeal that the trial court erred in revoking his probation because of its finding that he was not benefitting from probation. Defendant contends that the trial court's authority to revoke probation is limited by OAR XXX-XXX-XXXX, which provides:
"The decision to revoke probation is discretionary and may be exercised upon a finding that the offender has violated one or more of the conditions of probation, or that the offender has participated in new criminal activity."
Defendant reads the rule to state the only circumstances in which the court may exercise its discretion to revoke probation and not to include the circumstance of defendant's lack of benefitting from probation.
The state contends that this issue was not preserved under ORAP 5.45(1), which provides that "[n]o matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court * * *, provided that the appellate court may consider an error of law apparent on the face of the record." Defendant failed to object to the state's motion to revoke probation on the ground that he was not benefitting from probation and admits that the issue was not preserved. However, defendant contends that the error is apparent on the face of the record.
The majority correctly recites the test for plain error under State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990):(1) the error must be one "of law"; (2) it must be "not reasonably in dispute"; and (3) it must appear on the face of the record. 221 Or.App. at 80-81, 188 P.3d at 433-34. The trial court's error in failing to apply OAR XXX-XXX-XXXX is apparent from the record on review. But the majority concludes that the meaning of OAR XXX-XXX-XXXX is reasonably in dispute and, thus, that defendant is not aided by the plain error doctrine. The majority reasons that, because the rule does not "expressly indicate that the two grounds listed in the rule are the only grounds for revocation," it could mean that the grounds are permissive rather than exclusive in nature. 221 Or.App. at 82, 188 P.3d at 435. Moreover, the majority cites case law upholding probation revocation for lack of benefit from probation, albeit under different statutes and rules. Those arguments create, according to the majority, a reasonable dispute about the meaning of the rule. 221 Or.App. at 83, 188 P.3d at 435.
I disagree with that conclusion. The meaning of the rule is plainthe only bases for revocation of probation are (1) a violation of the stated conditions of probation or (2) participation in new criminal activity. The court's past authority under superseded statutes and rules is irrelevant to our understanding of the meaning of the rule.
The rule's effect is obvious from its text and context, as well as from statutes that authorize the rule and otherwise frame a trial judge's authority regarding probation decisions. Again, the text of OAR XXX-XXX-XXXX provides:
"The decision to revoke probation is discretionary and may be exercised upon a finding that the offender has violated one or more of the conditions of probation, or that the offender has participated in new criminal activity."
The sentence in the rule contains a single subject ("the decision to revoke probation") and two predicates ("is discretionary" and "may be exercised upon a finding"). Both predicates describe the decision to revoke probation. It is apparent, then, that a decision to revoke probation may be exercised only when a finding is made.
The state argues that the rule does not limit the discretion of the judge in the revocation of probation at all, but only states examples of the types of reasons that would *438 justify that sanction. In other words, the state construes the rule as open-ended, allowing probation revocation for any reason, including the two reasons specified in the rule. That construction is plainly inconsistent with the text of the rule. Why require a finding in order to revoke probation if any determination will suffice? The requirement that a finding be made necessarily implies that something is to be determined. The only reasonable reading of the rule is that the necessary determinations are those stated in the rule itself.
Moreover, the reasons for revocation that are stated in the rule are not particular, but are very broad categories of reasonsfailure to comply with any condition of probation and commission of any new crime. The rule does not state discrete justifications for revocation of probation as examples of an openended grouping, such as failure to remain in the state or possessing a firearm.[1] The breadth of the categories of revocation justifications stated in the rule necessarily implies that those categories are intended to be exclusive in nature.
A reading of the rule as close-ended and confining of judicial discretion is consistent with statutes that authorize and limit judicial decisions about sentencing and probation. Both ORS 137.010(1) and ORS 137.120(2) confine judicial discretion to pass or impose sentence for a conviction of a felony "in accordance with rules of the Oregon Criminal Justice Commission." OAR XXX-XXX-XXXX was adopted together with OAR XXX-XXX-XXXX to regulate judicial discretion in the making of probation revocation decisions.[2] In State v. Hoffmeister, 164 Or.App. 192, 196-97, 990 P.2d 910 (1999), we concluded that OAR XXX-XXX-XXXX limits the authority of a sentencing court to impose sanctions on offenders when probation is revoked, while also describing OAR XXX-XXX-XXXX as a limitation on judicial discretion:
"The trial court retains the discretionary authority to revoke a probationary sentence for cause. OAR XXX-XXX-XXXX. Similarly, the trial court retains limited authority to impose sanctions on offenders when probation is revoked. OAR XXX-XXX-XXXX."
We similarly described OAR XXX-XXX-XXXX as a limitation on judicial discretion to revoke probation in State v. Buehler, 206 Or.App. 167, 136 P.3d 64 (2006). As noted by the majority, Buehler did not decide the issue in this case-whether OAR XXX-XXX-XXXX confines judicial discretion to revoke probation to just the circumstances described in the rule. Buehler did decide, however, that OAR XXX-XXX-XXXX was a restriction on judicial discretion and that the rule narrowed revocation authority to be exercised based on "the existence of facts that, by their nature, can occur only after the offender has already been sentenced to probation." Id. at 171, 136 P.3d 64 (emphasis in original). That *439 view of OAR XXX-XXX-XXXX differs from the reading of the rule advanced by the state, that the rule codifies the unfettered discretionary authority of a trial court to revoke probation for any reason and on any set of facts.
The Legislative Assembly expressly made certain judicial decisions about probation discretionary and not contingent on predicate facts or determinations. A period of probation "may, in the discretion of the court, be continued or extended." ORS 137.545(1)(a). ORS 137.545(1)(b) allows discharge from probation by a court without any qualification of that authority. ORS 137.540(7) provides that the "court may at any time modify the conditions of probation." By contrast, ORS 137.540(6) makes revocation of probation a consequence of "[f]ailure to abide by all general and special conditions imposed by the court." That statutory context makes it more likely that OAR XXX-XXX-XXXX was intended to limit judicial discretion to revoke probation. That statutory context is different from the older and superseded statutes that provided bases for the court's conclusion in Barker v. Ireland, 238 Or. 1, 4, 392 P.2d 769 (1964), that probation may be revoked if the trial judge is satisfied that "the purposes of probation are not being served."
Based on the text and context of the rule, I conclude that OAR XXX-XXX-XXXX plainly limits the exercise of judicial discretion in revoking probation and confines that discretion to the prerequisites stated in the rule. The trial court erred in revoking defendant's probation for a reason other than one allowed under OAR. XXX-XXX-XXXX. That error of law appears from the record and is not reasonably in dispute under ORAP 5.45. That conclusion, however, does not end the inquiry. Our consideration of plain error is itself discretionary and depends on, among other factors,
"the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error."
Ailes v. Portland Meadows, Inc., 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991).
The ends of justice would not be served in this case by reversal and remand for further revocation proceedings. The undisputed evidence below was that defendant had not complied with a condition of probation that he submit to polygraph examinations "early in his intervention to properly plan his treatment regimen." That violation had continued for 18 months by the time of the revocation hearing. The failure to take a polygraph examination prompted the trial court to conclude that the purposes of probation were not being served and to revoke probation. Were the court to consider the question again, that violation of probation would almost certainly prompt the same result. It does not serve the ends of justice to remand for an unnecessary hearing. State v. Ramirez, 343 Or. 505, 514, 173 P.3d 817 (2007) (Ailes discretion should not be exercised to provide unnecessary hearing on remand). Moreover, had defendant objected to the state's motion to revoke probation because the purposes of probation were not being served, the violation of the polygraph condition could have been asserted as a basis for revocation of probation. Where defendant's own failure to object likely affected the scope of the proceedings and the record, it would not be just to allow defendant to avoid probation revocation because of deficiencies in the charges or the evidence to justify probation revocation.
For those reasons, I concur in affirming the judgment under review.
NOTES
[1] Former ORS 137.550 (1963) was also amended several times before it was renumbered in 1999. See Or. Laws 1965, ch. 346, § 2; Or. Laws 1971, ch. 743, § 326; Or. Laws 1987, ch. 908, § 1; Or. Laws 1989, ch. 790, § 17; Or. Laws 1991, ch. 196, § 2; Or. Laws 1993, ch. 14, § 12; Or. Laws 1993, ch. 581, § 2; Or. Laws 1993, ch. 680, § 17; Or. Laws 1997, ch. 313, § 11; Or. Laws 1999, ch. 614, § 2.
[2] OAR XXX-XXX-XXXX was adopted as former OAR XXX-XXX-XXXX by the State Sentencing Guidelines Board in 1988 and approved by the Legislative Assembly in 1989.
[3] After this case was submitted on the briefs, we asked the parties to file supplemental memoranda specifically addressing whether ORS 137.545(1) and (5)(b) limit the trial court's authority to revoke probation to only the circumstances in OAR XXX-XXX-XXXX. Both ORS 137.545(1) and (5)(b) grant courts a considerable amount of discretion with respect to probation. ORS 137.545(1) grants courts discretion to determine the length of probation by setting the initial period of probation and discretion to continue or extend it, ORS 137.545(1)(a), and discretion to discharge probation "at any time," ORS 137.545(1)(b). Likewise, ORS 137.545(5)(b) authorizes courts to impose sanctions after it has revoked probation.
Defendant's response to our request sheds additional light on the inquiry at hand. Defendant acknowledges that neither ORS 137.545(1) nor (5)(b) limits a court's authority to revoke probation to only the circumstances in OAR XXX-XXX-XXXX. Instead, defendant argues that other statutes-specifically, ORS 137.010(1) and ORS 137.540(6)-limit the court's authority to revoke probation to the circumstances in OAR XXX-XXX-XXXX.
ORS 137.010(1) provides:
"The statutes that define offenses impose a duty upon the court having jurisdiction to pass sentence in accordance with this section or, for felonies committed on or after November 1, 1989, in accordance with rules of the Oregon Criminal Justice Commission unless otherwise specifically provided by law."
ORS 137.540(6) provides:
"Failure to abide by all general and special conditions imposed by the court * * * may result in arrest, modification of conditions, revocation of probation or imposition of structured, intermediate sanctions in accordance with rules adopted under ORS 137.595."
We are not persuaded that either ORS 137.010(1) or ORS 137.540(6) conclusively limits the trial court's revocation authority to only OAR XXX-XXX-XXXX. However, more importantly, defendant's response supports our ultimate conclusion that the legal point defendant raises is reasonably in dispute.
[1] ORS 137.540(1) lists a number of mandatory conditions of probation that are imposed unless specifically deleted by the court, including requirements that the probationer "[r]emain in the State of Oregon until written permission to leave is granted" and "[n]ot possess weapons, firearms or dangerous animals." ORS 137.540(1)(e), (L).
[2] OAR XXX-XXX-XXXX and OAR XXX-XXX-XXXX (former OAR 253-10-001 and former OAR 253-10-002) were adopted in 1988 by the State Sentencing Guidelines Board, a predecessor to the Oregon Criminal Justice Commission, as part of a package of rules on the implementation of the sentencing guidelines. The rules were approved by the Legislative Assembly. Or. Laws 1989, ch. 790. OAR XXX-XXX-XXXX provides:
"Revocation Sanctions
"(1) For those offenders whose presumptive sentence was probation, the sentence upon revocation shall be to the supervisory authority for a term up to a maximum of six months.
"(2) For those offenders whose probationary sentence was either a departure from a presumptive prison sentence or a sentence imposed pursuant to OAR XXX-XXX-XXXX, the sentence upon revocation shall be a prison term up to the maximum presumptive prison term which could have been imposed initially, if the presumptive prison term exceeds 12 months. For those presumptive prison terms 12 months or less, the sentence upon revocation shall be to the supervisory authority, up to the maximum presumptive prison term.
"(3) Notwithstanding (2) of this rule, if a probation sentence is revoked under ORS 137.712(5), the court shall impose the presumptive prison term.
"(4) When imposing a revocation sanction, the sentencing judge shall also set a term of post-prison supervision in accordance with OAR XXX-XXX-XXXX.
"(5) No revocation sanction may exceed the limitations established by this rule." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1228787/ | 299 S.C. 456 (1989)
385 S.E.2d 830
The STATE, Respondent
v.
John Douglas AUSTIN, Appellant.
23096
Supreme Court of South Carolina.
Heard February 8, 1989.
Decided November 6, 1989.
*457 Chief Attorney William I. Diggs and Asst. Appellate Defender Tara D. Shurling, S.C. Office of Appellate Defense, Columbia, for Appellant.
Attorney General T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia, and Solicitor Joseph J. Watson, Greenville, for respondent.
Heard Feb. 8, 1989.
Decided Nov. 6, 1989.
FINNEY, Justice:
Appellant John Austin was convicted of simple assault and battery, strong arm robbery, and petit larceny. The trial court sentenced appellant to eight years imprisonment for robbery, thirty days concurrent for petit larceny and thirty days concurrent for simple assault and battery. Appellant appeals alleging the trial court erred by denying his request for an additional jury charge on the law of mere presence, denying his motion requiring the state to elect between robbery and petit larceny and asserts further that conviction for robbery and petit larceny constitutes double jeopardy. We affirm in part and reverse in part.
Mark Davis testified that on April 2, 1987, while walking from a convenience store, he was attacked and his money taken by the appellant and another man. Davis testified that the appellant grabbed his neck and, along with the other man, beat him.
Wayne Townsend, a police officer with the Greenville County Sheriff's Department, testified that while he was driving home from work he observed the attack on Davis. According to Officer Townsend, Davis was on the ground and the appellant and the other man were hitting him with their fists. Townsend said he saw the appellant kick Davis in *458 the ribs and in the head. Townsend approached the scene, announced that he was a police officer, and directed the assailants to desist. Davis complained to Officer Townsend that "they" had taken his money.
Appellant's version of the incident differs from the versions propounded by Davis and Officer Townsend. Appellant testified that as he was walking down the street, two men approached him. One of them stopped, turned around, and went the other way. The other man approached the appellant, asked for a cigarette and began to follow the appellant. Appellant then saw Davis coming down the street. Appellant testified that the man who was following him approached Davis and requested a quarter. Davis told the man that he did not have a quarter. The man then grabbed Davis around the neck and pulled Davis to the ground. Appellant testified that he was knocked to the ground by the unknown assailant and, as a result, became physically entangled in the assailant's attack on Davis. Appellant denies grabbing or kicking Davis and contends the unknown assailant took Davis' wallet.
We first address appellant's argument that the trial court erred by denying his request for an additional jury charge on the law of mere presence.
A request to charge a correct statement of the law on an issue raised by the indictment and the evidence presented at trial should not be refused. State v. Kimbrell, 294 S.C. 51, 362 S.E. (2d) 630 (1987). However, if the trial judge refuses to give a specific charge, there is no error if the charge actually given sufficiently covers the substance of the request. Id.
The trial judge charged the jury, in relevant part, as follows:
[A] principal in a crime is one who either in person perpetrates the crime or who being present aids, abeits [sic] and assists in the commission of that crime. When one does an act in the presence of and with the assistance of another, the act is done by both. And where two or more, acting with a common design or a common intent, are present at the commission of a crime, it matters not by whose immediate agency that crime is committed because all would be guilty. Intent, however,
*459 ladies and gentlemen, is a necessary element, for there must have been a common design or intent to commit the crime and the crime must have been committed pursuant thereto with the person aiding and abeiting [sic] by some overt act....
Our review of the charge in question convinces us that the language of the instructions made it sufficiently clear that to find guilt for a crime, a person must personally commit the crime or be present at the scene of the crime and intentionally, or through a common design, aid, abet, or assist in the commission of that crime through some overt act. In our view, the jury charge, as given, sufficiently covered the substance of appellant's request. Thus, the trial judge did not err by refusing to give an additional charge.
We next address appellant's argument that the trial court erred in denying his motion to require the State to elect between the charges of robbery and larceny. Under South Carolina law, distinct criminal offenses may arise from a single act. State v. Hall, 280 S.C. 74, 310 S.E. (2d) 429 (1983). Therefore, we find no error in the trial court submitting both charges to the jury. Finally, appellant asserts that his conviction for petit larceny cannot stand and must be set aside. We agree. Larceny is a lesser included offense within robbery, and punishment for both offenses arising out of the same incident is impermissible. State v. Lawson, 279 S.C. 266, 305 S.E. (2d) 249 (1983).
Accordingly, the conviction for petit larceny is reversed and the sentence vacated; the convictions and sentences for robbery and simple assault and battery are affirmed.
Affirmed in part and reversed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1289938/ | 581 P.2d 884 (1978)
In the Matter of SHEROL A.S., Tammy W.S., and Chesley O.S., children under eighteen years of age.
COLEMAN S. and Lucille S., Appellants,
v.
DEPARTMENT OF INSTITUTIONS, SOCIAL AND REHABILITATIVE SERVICES and the State of Oklahoma, Appellees.
No. 49558.
Supreme Court of Oklahoma.
July 18, 1978.
John C. Hudson, Chickasha, for appellants.
Melvin R. Singleterry, Dist. Atty., District No. 6, Chickasha, by Larry E. Baresel, Asst. Dist. Atty., Clyde E. Davis, II, Legal Intern, for appellees.
*885 SIMMS, Justice.
Coleman and Lucille S. appeal from a judgment which terminated their parental rights in, and to, their daughter, Tammy, age 5, and their son, Chesley, age 2, and removed custody of their 15 year old daughter, Sherol, from them. We have granted Certiorari to the Court of Appeals, Division No. I from its opinion affirming the trial court.
Appellants present numerous assignments of error. They contend that the evidence was insufficient to support the court's order and that the trial court misconstrued and misapplied certain statutory provisions. Additionally, they enter procedural and substantive constitutional challenges to our termination statutes generally, and as applied in this action.
Appellants argue that the basis, if any, of the trial court's judgment was their poverty per se. They submit that the totality of the evidence "against" them in its strongest light showed only that:
(1) They are poor and uneducated people; and
(2) that their house was sometimes dirty; and
(3) that their social worker thought they were "lazy and lacked initiative"; and
(4) that their older daughter, Sherol, missed a lot of school.
Appellants admit that they are poor people with little formal education. Neither went beyond the seventh grade. Coleman has been totally disabled since 1964 when he was buried in a pipeline excavation and suffered permanent nerve and muscle damage from oxygen deprivation. Because of his physical condition he has been unable to hold a job for any substantial period of time and at the time of the termination hearing, he was receiving social security disability benefits. They admit that their house was, for a variety of reasons, dirty at times and that Sherol's school attendance was poor. They argue that these facts do not, however, either separately or collectively, constitute grounds for termination of parental rights under 10 Ohio St. 1971, § 1130. They submit that neither their poverty, dirty house, lifestyle that is not illegal or immoral, or Sherol's poor school attendance justified the court's order and that the judge acted arbitrarily and outside the scope of his authority in entering this judgment.
Appellants argue there was no showing, and indeed no attempt to show, that they were "unfit" parents who neglected, abused or abandoned their children, or that their financial status, "lifestyle" or housekeeping *886 standards had a substantial detrimental effect on the children such as disease, malnutrition or exposure. They contend that rather than showing that their children suffered harm from neglect or mistreatment, the evidence instead showed that they loved their children very much and that the children were well cared for and happy. They were, they assert, shown to be a close-knit, happy family with no problems other than those common to families of modest means.
We agree with appellants' summary of the evidence and we agree that the evidence was patently insufficient to support the judgment of the trial court. Inasmuch as the insufficiency of the evidence is dispositive of this appeal, we restrict our discussion and our holding to that issue.
It is impossible to discern from the record the exact event which precipitated this action, but it is clear that from beginning to end, its substance has revolved around appellant's housekeeping habits. Specifically, as to whether or not they were maintaining, in the words of the trial court, "minimum standards of cleanliness."
On March 11, 1974, a verified petition was filed alleging that Sherol, Tammy and Chesley[1] were dependent and neglected children within the purview of the juvenile code. The sole basis alleged in support of the petition was that:
"[s]aid children have not had the proper parental care or guardianship and whose home, by reason of neglect and depravity on the part of their parents is an unfit place for said children."
On that date, the court, pursuant to the petition and upon his belief that an emergency existed, issued an order placing immediate temporary custody of the children with the Department of Institutions, Social and Rehabilitative Services (Department), appellee herein.
Two days later an amended petition was filed, the exact allegations were reasserted but the relief sought was changed to pray for termination of appellants' parental rights.
Adjudicatory hearing was set for March 27, 1974. At that time appellants' court appointed attorney moved the court to continue the matter of the adjudication for three months. The reason for the requested continuance clearly appears from the reported dialogue between counsel and the court: it would afford appellants an opportunity to remedy those conditions in their home which the Department found objectionable. In that way the deficiencies which resulted in the action could be corrected before hearing on the petition was held.
In retrospect, statements of appellants' counsel show a gross misunderstanding between appellants and the Department as to the seriousness of the consequences that would follow the adjudication of the children as dependent and neglected:
"At the present time the children are outside the home and the [appellants] have been assured repeatedly this is a temporary thing to give them an opportunity to straighten this household around to meet standards that are apparently being set by the Welfare Department."
Pursuant to the request, hearing was continued until June, 1976, at which time another attorney appointed to represent appellants appeared and stipulated to the allegations of the petition. Inasmuch as the petition contained only the broad conclusory language of the statute[2] without any factual allegations in support thereof[3] and testimony by Mrs. S., theoretically offered in support of the stipulation, showed instead that the conditions which led to the initiation of the action had been corrected[4] the *887 legal basis for this stipulation is unclear. (We recognize that the attorney prosecuting the appeal was not the attorney who entered the stipulation.)
The motivation behind the stipulation, however, is obvious: in exchange for stipulating to the adjudication, the appellants were to be restored the custody of their children.
The court accepted the stipulation, adjudicated the children dependent and neglected and returned their custody to appellants under supervision of the Department. The matter of termination of parental rights was set off until December 6, 1974, and the judge advised appellants the issue would be heard earlier if they failed to maintain an "acceptable standard of living", mentioning specifically bathroom facilities and clean clothes, and further advised appellants that the Department would be checking on them unannounced periodically to see if they were maintaining this standard.
Hearing on the issue of termination was again set off. On December 12, 1974, a hearing to review custody was held, however, and the court ordered custody to remain with appellants. The children were at all times in appellants' custody until the termination hearing was eventually held on March 5, 1976.
At that hearing, the State called three witnesses: Bob Holman and R.Z. Howell, attendance officer and visiting counsellor, respectively, of the Chickasha Schools; and Don Ulrich, Grady County Juvenile Officer. A summary of their testimony showed the following. Sherol had missed 64% of the current school year at Chickasha but the records did not reflect the reasons for her absences, and she had recently transferred to the Amber-Pocasset District. Mr. Howell and Mr. Ulrich had each made one visit to appellants' home. Mr. Howell, at the request of Mrs. S., went to the home on January 23, 1976, to counsel with Sherol about school; because he knew she had been ill and hospitalized, he took the school nurse with him; Tammy and Chesley were not in the home, but Sherol was, and appeared to be ill; the appellants expressed their desire for her to regularly attend school and Mrs. S. said she thought Sherol had "some block" about school. Mr. Howell declined to comment on appellants' home situation as he had been in the home just once and then to visit Sherol; asked about the condition of the home that day, he stated that "the sheets and things on the bed were dirty and the home was generally dirty." He agreed with Mrs. S. that Sherol had a "block" about school but he didn't know the basis of it.
Mr. Ulrich testified that at the request of the Department he went to appellants' home on July 7, 1975, to take photographs; that he took three photographs of the interior of their home (State's Exhibit 2) and, as they reflected, there were several boxes of clothes on the floor and the kitchen was dirty; that Tammy and Chesley were in the home but he didn't recall observing the condition of the youngsters; the house, on the day of his visit, "looked like some improvement could be made"; when asked by the district attorney if it was a "proper place and suitable for rearing children", he responded, "not in the condition it was in" on July 7, 1975.
Over appellants' objections, and in spite of the fact that she was present in the court room, the State was allowed to put in evidence a written "Social Summary" prepared *888 by Valree Allen, appellants' social worker.[5] The essence of Mrs. Allen's "summary" was as follows: each time she had "visited" in appellants' home it was "dirty"; the appellants appeared to her to be "very lazy and lacking in initiative"; Sherol's school attendance was worse; appellants love their children and appear to be "contented with this way of life" but to Mrs. Allen, they "appear very weak in their parental role" in that they "allowed" Carol and Delbert to quit school and now Sherol's grades were such that she could not, in Mrs. Allen's opinion, pass. Tammy, Mrs. Allen pointed out, was in the first grade, was happy with school and did not miss it. The appellants, in Mrs. Allen's opinion, were "not strong enough people" to "cope" with Sherol's feelings or discipline her, and "without careful planning" Tammy and Chesley would "fall into the same pattern" as Carol, Delbert and Sherol.
That was the entirety of the State's case against appellants. Appellants demurred to the evidence, arguing that the State had not sustained its burden of proof; pointing out that the only testimony elicited as to the children was about Sherol, and that went only to her school attendance and that absolutely no testimony had been given as to whether these three children were neglected by reason of lack of parental care.
Appellants' demurrer to the evidence should have been sustained.
It is true that in recent months this Court has been divided on many aspects of our involuntary termination procedure.[6] There is, however, one important point upon which we all agree: The purpose of termination is to protect children from HARM suffered by reason of either neglect or the intentional actions of their parents. Termination is not a means by which the State of Oklahoma, through its juvenile courts and the Department, can exact conformity from its citizen-parents through the imposition of an "acceptable" common value system and "lifestyle". There is no authority in our Juvenile Code which allows the State to interfere with family relationships where harm to children is not involved.[7] This is, of course, a notion of constitutional dimension. The fundamental integrity of the family unit, which has found protection in the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the Ninth Amendment, is subject to intrusion and dismemberment by the State only where a "compelling" State interest arises and protecting the child from harm is the requisite State interest.[8]
Here the evidence showed absolutely no actual or imminent harm to Tammy and Chesley. In fact, the only testimony about them at all was that they weren't home when Mr. Howell came to see Sherol and that although they were home when Mr. Ulrich came to the home, he couldn't remember anything about them. The hearsay written report of Mrs. Allen's said nothing about Chesley and revealed only that Tammy liked school and was rarely absent.
*889 After their demurrer was overruled, appellants presented the following evidence in their behalf. Their testimony showed that Sherol had suffered tonsil related problems for quite some time and her tonsils had been removed in December, 1975; that except for the fourth grade, Sherol had been promoted each successive year; and that her grades had improved greatly since transferring to Amber-Pocasset. In regard to the clothes on the floor the day Mr. Ulrich came, Mrs. S. explained she was gathering the wash, and she explained why the house was dirty during some of Mrs. Allen's visits. Mr. S. stated that he had painted the house, laid new linoleum and gotten new bedding, and he thought their home was about average for a family not perfect and not real bad. Their monthly income was approximately $470.00, Mrs. S. calculated, consisting of Welfare and Social Security benefits. Mrs. S. stated that she was willing for the Judge and District Attorney to go right then and inspect their home.
Appellants called three neighbors, one of whom was their landlady, as witnesses. Essentially their testimony was that they had been frequent visitors in appellants' home and they thought it was a normal household for people raising children: sometimes it was clean and sometimes it was not. In their opinion Tammy and Chesley were polite and well-behaved children; Tammy, Sherol and Delbert were always clean, but Chesley as little boys are wont to do would get dirty immediately after being cleaned up. Their landlady testified that appellants were good tenants; they didn't drink or cause disturbances and had done considerable work in improving the property; she had never seen debris on the property and would have required appellants to leave if they had caused or allowed the property to deteriorate. In her opinion, appellants' housekeeping standards were those of "average poor people."
Sherol S. testified that most of her absences were due to illness and that although her parents made every possible effort to see that she attended school, she sometimes skipped school without their knowledge or permission; that she liked her new school better than Chickasha and her grades were improving. Sherol stated that although she had been unhappy at school, she was not unhappy at home.
Appellants also called Valree Allen, their Social Worker, whose written report had been admitted in the State's case-in-chief. She testified that she had been employed by the Department since October, 1975, at which time she "inherited" appellants, but that she did not actually go to the appellants' home until December, 1975, because from October until December she was "reading manuals" and "trying to learn" how to be a social worker. Mrs. Allen had a BA in business and had previously worked with the Head Start program testing children and conducting parent interviews. Mrs. Allen stated that she tried to go to appellants' home every other week and had made approximately six visits there; that she had seen Chesley be "very, very dirty, many times" but that Tammy was usually in school. Mrs. Allen testified that Mrs. S. had asked her to counsel with Sherol about missing school and that she had done so; that Sherol told her she hated school and didn't like anything about it, she hated the teachers, thought they didn't like her, and wanted to transfer to Amber-Pocasset. Mrs. Allen agreed that appellants make an effort to get Sherol to school and keep her there; she knew that some of Sherol's absences were due to illness; she also agreed it is not abnormal for a child to hate school and teachers. Mrs. Allen stated that the reason she thought appellants were "lazy and lacking in initiative" was because on her visits it appeared to her that they were "just sitting there watching TV in all this filth and mess."
In her opinion, amount of income has no bearing on the condition of a home; "some" of the welfare recipients she worked with had cleaner houses than appellants' and managed to keep their children in school. Asked whether she considered this a "happy or unhappy home as far as the children and family unit" were concerned, Mrs. Allen replied, "I think they are happy living like that."
*890 Based upon her five months "experience, learning and skill" in the field of social work, it was Mrs. Allen's opinion that it "seems like there is a pattern" and that if Tammy and Chesley were left in appellants' home, it was "possible" they would fall into the same pattern as Carol, Delbert and Sherol. She explained that pattern as "not going to school, not wanting to go to school and the parents allowing them to quit school." Mrs. Allen testified, however, that she had never met Carol and didn't know why Delbert quit school.
Announcing his judgment, the court noted that this case was primarily about "a minimal standard of cleanliness," which he found appellants had not met and, although noting that "within their limited ability the [appellants] do try and ... do love their children", ordered their parental rights in and to Tammy and Chesley terminated. Due to Sherol's advanced age and resulting ineligibility for adoption, the court only removed her custody from appellants.
In fairness we cannot hold out appellants as a typical Oklahoma family and it appears from the record that these children will enjoy fewer material, educational and cultural advantages than many of their peers but these facts do not rise to the threshold of harm prerequisite to severing the natural and legal bonds of parent and child.
The social sciences may or may not recognize psychological "patterning" among siblings as a natural phenomenon, but it is not the stuff from which the law on termination is made. It should be mentioned that the State does not take young children from parents when their older child is convicted of a heinous crime. Sherol's school problems were not even shown by the record to be related to Delbert and Carol's reasons for leaving school. Any school problems these three older children had, whether common or separate, was the proper concern of the appellants and the school system not the juvenile court in a termination proceeding involving Tammy and Chesley.
We stress that we are not concerned here with a case where disease and pestilence affected these children without parental concern or correction. The only proof is of a "dirty" house. Dirt alone has not been shown by history, or by the record in this case, to be so harmful to children that governmental interference in family relations is warranted.
In 1924 the Supreme Court of North Dakota had occasion to rule upon a very similar situation in In re Kebler, 51 N.D. 698, 200 N.W. 786. There the court reversed a judgment removing children from their parents' "indescribably dirty" home on the ground of neglect and offered the following observation on the sanctity of the family unit in our country. Perhaps these words are even more necessary to read and reread in 1978 than they were in 1924:
"The parents may not be blessed with intelligence of the highest order, nor with a high degree of education or culture. The law, however, makes no distinction between the genius and the common man, the educated and the ignorant, the refined and the uncouth, the rich and the poor, in so far as the natural right to the custody of offspring is concerned. Every consideration of justice and humanity requires that family ties shall not be lightly sundered. * * * The home and the family, held together by the ties of natural, rather than adoptive, affection, is the last bulwark of American institutions. Poverty, lack of education or of culture alone, are never sufficient justification for severing the ties that bind families together. In this western country, on these western plains, many a home might have been broken where large families were raised by the pioneers in one room cabins of logs or sod, had poverty, lack of education, or begrimed faces of children, playing on naked Mother Earth, been the only showing required. In a recent case, very similar in its facts to the one here, and under analogous statutes, the Superior Court of Pennsylvania said:
`The great bulk of the evidence seems to show there was really nothing *891 wrong with the children who are the subject of this complaint, except that they were dirty and not well groomed. * * * It was not the purpose of the statutes now in force in Pennsylvania to prescribe just how often in a week a child should be scrubbed. Within the writer's knowledge, a generation of vigorous men and women have grown up under conditions that would not meet the approval of some of the witnesses of the commonwealth.' Commonwealth v. Bickel et al., 78 Pa.Super. 348 p. 351.
"It by no means follows that a child's welfare is always necessarily promoted by removing him from a home of poverty and hard work, and transplanting him in another home of luxury and ease."
See also, In re Sweet, Okl., 317 P.2d 231 (1957).
The decision of the Court of Appeals, Division No. 1, is Vacated; the Judgment of the trial court is Reversed and the cause Remanded to the trial court with Directions to Dismiss the Petition and restore immediate custody of these three children to appellants.
All the Justices concur.
NOTES
[1] An older son, Delbert, was originally included in this action but he reached majority during the pendency of the trial court proceedings.
[2] 10 Ohio St. 1971, § 1101(c).
[3] See: 10 Ohio St. 1971, § 1103(b)(1).
[4] "Q. Mrs. S., do you have your rent paid?
A. We have it paid for two weeks. Everything is in working order.
Q. Have you had the bathroom in the home fixed?
A. Yes.
Q. Does it now have adequate sanitary standards?
A. Yes the shower is in.
Q. What about toilet facilities?
A. Yeah, it is fixed.
Q. What about the presence of Carol [older daughter] and her husband?
A. They have moved. They are living at 527 South Sixth and he has got a job. He has got him a permanent job and they are making it just fine.
Q. Is your husband currently employed?
A. No, he got laid off out here at the Circle "B" horsetrailers because of our car. We had two cars and they both tore up on us.
Q. He is presently seeking employment?
A. He has his application in at Maremont and he has also got his application out at Carl-Bilt."
[5] As this matter is resolved on other grounds, we do not address the impropriety of allowing this hearsay testimony in a hearing to terminate parental rights.
[6] See: J.V. v. State of Oklahoma, DISRS, Okl., 572 P.2d 1283 (1977); Matter of Keyes, Okl., 574 P.2d 1026 (1978); Matter of Ernest James C., Okl., 578 P.2d 352 (1978); Matter of Christopher H., Okl., 577 P.2d 1292 (1978); Ilee M. v. DISRS, Okl., 577 P.2d 908 (1978).
[7] 10 Ohio St. 1971, § 1130(c)(3) requires that:
"... permanent termination of parental custody of the child, or children, IS NECESSARY TO PROTECT ITS PHYSICAL OR MENTAL HEALTH OR MORALS ..." (emphasis added)
[8] Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942); Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1943); May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974); Alsager v. District Court of Polk County, 406 F. Supp. 10 (S.D.Iowa 1975); Roe v. Conn, 417 F. Supp. 769 (M.D.Ala. 1976); Sims v. State Dept. of Public Welfare, etc., 438 F. Supp. 1179 (S.D.Tex. 1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1148067/ | 517 So. 2d 898 (1987)
Lloyd MURDOCK, et ux., Plaintiffs-Appellees,
v.
BRITTCO, INC., et al., Defendants-Appellants.
No. 86-822.
Court of Appeal of Louisiana, Third Circuit.
October 7, 1987.
*899 William R. Boone, Many, for plaintiffs-appellees.
F. Clay Tillman, Leesville, for defendants-appellants.
Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
GUIDRY, Judge.
Plaintiffs, Lloyd A. and Phyllis D. Murdock, filed suit against defendants, Brittco, Inc. and Mary Mitchell Merritt, on November 5, 1984, seeking the dissolution of an oil, gas and mineral lease; a temporary restraining order (TRO), and injunctive relief prohibiting further operations under the lease; and, damages in the amount of $5,000.00. The petition requested service on Brittco, Inc.[1] at the address "Many, Louisiana 71449" and on Mary M. Merritt at the address "Fisher Road, Many, Louisiana 71449".
The trial court granted the requested TRO and fixed a hearing on the motion for a preliminary injunction for November 28, 1984. Mary M. Merritt was personally served. Service on Brittco was made by delivery of citation to Ms. Helen Morris Rains, the secretary-treasurer of Brittco, at 720 San Antonio, Many, Louisiana. On November 26, 1984, plaintiffs took a preliminary default against both defendants.
Ms. Rains ultimately delivered the served papers to Warren Marlin Britt, who apparently contacted an attorney, Henry C. Gahagan, sometime prior to the scheduled November 28, 1984 hearing. Presumably, Gahagan contacted plaintiffs' attorney, William R. Boone, requesting a continuance of the November 28, 1984 hearing. On November 28th, plaintiffs' counsel, Mr. Boone, appeared in court and obtained a continuance of the hearing and an extension of the TRO. The record reflects no general appearance, at any time, by either defendant or counsel appearing on their behalf. By confirmation of the default previously taken, plaintiffs, on December 20, 1984, secured a judgment against both defendants awarding plaintiffs all the relief for which they had prayed. This judgment, insofar as it affects Mary M. Merritt, is now final.
On March 13, 1985, Brittco filed a petition seeking annulment of the judgment of December 20, 1984, and an injunction restraining its enforcement. The sole basis for the relief sought is that the attempted citation and service of process on Brittco, through Ms. Helen Morris Rains, was invalid rendering the December 20, 1984 judgment an absolute nullity. La.C.C.P. art. 2002(2). A hearing on Brittco's request for injunctive relief was held March 28, 1985, following which, on April 8, 1985, a preliminary injunction was issued.
Trial of the petition to annul was not held until January 23, 1986. The Murdocks contended that service on Ms. Rains was effective service of process on Brittco because the latter's registered agent, Warren Marlin Britt, had verbally appointed Ms. Rains as his agent to receive service of process both individually and as registered agent for Brittco. Deputy Wayne Self of the Sabine Parish Sheriff's Department testified that Britt had told him that any papers which Self needed to serve on Britt could be left with Ms. Rains at Rains' Western Wear in Many and that he had done so on several occasions. Self could not remember if any of the papers had been for Brittco. Self further stated that he could not remember Britt ever specifically telling him that Brittco could be served through Ms. Rains, nor did he know the officers or the agents for service of process of Brittco. On cross-examination, Deputy Self stated that when serving papers *900 on a corporation, if he did not know the registered agent for service of process, "I usually get the name of whoever I give it to at the corporation, and I mark it as domiciliary service served through that person". When asked about the Brittco service, Deputy Self stated, "I used domiciliary service on this paper ...".
Ms. Helen Rains testified that she was not nor had she ever been a registered agent for service of process for Brittco and that the registered agents, Warren Marlin Britt and Don Burkett, had never authorized her to accept service for Brittco. She did, however, admit accepting papers for Britt in the past. Britt testified that he had told Deputy Self that rather than going to all the trouble to "track him down", he could leave word with Ms. Rains at her store and Britt would then contact Self. Britt did admit that he had in the past accepted service that Self had left for him with Ms. Rains, but denied that Brittco had ever been served in this manner.
Plaintiffs alternatively argued that, even if the service on Brittco was insufficient, such objection was waived as the contact by Gahagan of Boone requesting a continuance of the original hearing constituted a general appearance under La.C.C.P. arts. 6 and 7. This argument is without merit. No written pleading was filed and no appearance in court was made by Brittco or anyone on behalf of Brittco until the corporation filed its petition seeking to annul the judgment of December, 1984. Although the hearing fixed for November 28, 1984 was continued, the motion to continue was made by and granted to counsel for the Murdocks. Under these circumstances, Brittco did not make a general appearance within the purview of La.C.C.P. art. 7.
In its written reasons for judgment the trial court correctly stated:
"C.C.P. article 1201 provides:
`Citation and service thereof are essential in all civil actions except summary and executory proceedings without them all proceedings are absolutely null.'
Where a corporation is a party service must be made upon a registered agent, if registered agents have been designated. Article 1261 of the Louisiana Code of Civil Procedure.
Service of process directed to a corporate defendant and made on one other than the person authorized to accept such service is illegal and without effect. Conner vs. Continental Southern Lines, Inc., 294 So. 2d 485.
In the instant case two registered agents of the defendant corporation had been designated both were living and resided in Many, Louisiana. Either could have been served. However, neither one of them was served."
The court then erroneously concluded:
"The Court considers Code of Civil Procedure Article 1235[2] and Civil Code Article 2992[3] applicable in this case, and adopts Plaintiff's memorandum in this connetion.
For these reasons the petition of Brittco, Inc., to annul judgment is denied, at its costs."
On July 11, 1986, judgment was rendered dismissing Brittco's petition to annul along with the following supplemental reasons for judgment:
"Brittco, Inc. is essentially a one-man corporation, namely, Marlin Britt, one of its designated agents for process. It is well known locally that Mr. Britt and Mrs. Helen Raines [sic] are friends and business associates. Mrs. Rains was always at her local place of business and Mr. Britt, an extremely active individual was in and out a great deal. This is why he instructed the Sheriff to serve all citations meant for him on Mrs. Helen *901 Rains. This was a clear mandate to the sheriff and the one he operated under in serving citations meant for Mr. Britt, and Mr. Britt did in fact receive the citation."
It is from the July 11, 1986 judgment that Brittco appeals.
The record confirms correctness of the trial court's conclusion that Brittco is a Louisiana corporation with Warren M. Britt as the sole stockholder; Britt and Don Burkett are its registered agents for service of process; service was made at the listed address for Brittco and Warren M. Britt of 720 San Antonio, Many, Louisiana, but on Ms. Helen Rains, secretary-treasurer of Brittco; and, Britt did direct the Sabine Parish Sheriff's Department through Deputy Wayne Self to serve all citations "meant for him on Ms. Helen Rains". However, we find that the trial court clearly erred when it held that the service on Ms. Rains was effective service of process on Brittco, Inc.
A corporation is not a "person" but an entity which has an existence separate and distinct from its stockholders and officers. La.C.C.P. art. 1235, on which the trial court so heavily relied, is found in Book I, Title II, Chapter 2 of the Louisiana Code of Civil Procedure entitled "Service on Persons" (emphasis ours). In our view, these articles have no application to the articles of the Code of Civil Procedure found in Book I, Title II, Chapter 3 entitled "Service On Legal And Quasi Legal Entities". Although there is support in the record for the trial court's determination that the corporate agent for service of process, Britt, attempted to appoint Helen Rains as his agent to receive citation and service of process on behalf of Brittco, such appointment is invalid and without effect. La.C.C. P. arts. 1261 and 1262 set forth the exclusive [4] methods for effecting service of citation and other process upon domestic or foreign corporations. La.C.C.P. art. 1261 states:
"Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.
If the corporation has failed to designate an agent for service of process, or if there is no registered agent by reason of death, resignation, or removal, service of the citation or other process may be made at any place where the business of the corporation is regularly conducted either:
(1) By personal service on any officer, director, or resident agent named in the articles of incorporation or in the last report previously filed with the secretary of state, or
(2) By personal service on any employee of suitable age and discretion."
La.C.C.P. art. 1262 states:
"If the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1261, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on corporations. The secretary of state shall forward this citation to the corporation at its last known address."
There is no provision in either of these articles authorizing domiciliary service upon a corporation. Additionally, our jurisprudence has consistently interpreted these articles to prohibit domiciliary service on a corporation. Scott Fence Industries, Inc. v. Neuenhaus, 490 So. 2d 1132 (La.App. 5th Cir.1986); Service Electric of Louisiana, Inc. v. Clifton Briley, Inc., 479 So. 2d 691 (La.App. 3rd Cir.1985); Louisiana Bank and Trust Company v. Murcambyr, Inc., 419 So. 2d 106 (La.App. 2d Cir.1982), writ denied, 423 So. 2d 1148 (La.1982); Gamble v. Carter, 378 So. 2d 185 (La.App. 1st Cir. 1979). Furthermore, neither of these two articles contemplate or authorize a corporation's registered agent for service of process to substitute another individual by verbal mandate for the purpose of receiving service of citation or process for the corporation. La.R.S. 12:104 provides the exclusive *902 method for adding, deleting or changing corporate registered agents for service of process.
Thus, although Britt may have validly constituted Ms. Rains as his personal agent to receive service of process in matters brought against him individually, such designation could be and was of no force or effect insofar as Brittco, Inc. was concerned. Since service on Brittco was not made in accordance with law, it follows that the proceedings which resulted in the default judgment against the corporation were null, void and of no effect.
For the foregoing reasons, the judgment of the district court is reversed and it is ordered, adjudged and decreed that the judgment of the trial court rendered in these proceedings in favor of Lloyd A. Murdock and Phyllis D. Murdock, dated December 20, 1984, insofar as it purports to affect Brittco, Inc., is hereby declared null, void and of no force and effect. This matter is remanded to the trial court for further proceedings consistent with the views expressed and according to law. Plaintiffs-appellees are cast with all costs of this appeal. Costs at the trial level will await a final disposition of this matter.
REVERSED AND REMANDED.
NOTES
[1] The record reflects that Brittco, Inc. is a domestic corporation with two agents for service of process: (1) Warren Marlin Britt, 720 San Antonio, Many, Louisiana 71449, and (2) Don M. Burkett, 805 E. San Antonio Avenue, Many, Louisiana 71449. Further, it is undisputed that the corporation is wholly owned by Warren Marlin Britt.
[2] La.C.C.P. art. 1235 states:
"Service is made on a person who is represented by another by appointment of court, operation of law, or mandate, through personal or domiciliary service on such representative." (Emphasis ours).
[3] La.C.C. art. 2992 states:
"A power of attorney may be given, either by a public act or by a writing under private signature, even by letter.
It may also be given verbally, but of this testimonial proof is admitted only conformably to the title: Of Conventional Obligations."
[4] La.R.S. 13:3471 et seq. set forth supplementary rules, but these do not affect the substance of articles 1261 and 1262. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1451042/ | 974 F. Supp. 905 (1997)
SIERRA CLUB, et al., Plaintiffs,
v.
Daniel GLICKMAN, Secretary of Agriculture, et al., Defendants,
and
Texas Forestry Association and Southern Timber Purchasers Council, Defendant-Intervenors.
No. 9:85-CV-69.
United States District Court, E.D. Texas, Lufkin Division.
August 14, 1997.
*906 *907 *908 *909 *910 Mary Alice Van Kerrebrook, Meyer & Cribbs, Houston, TX, Douglas Loie Honnold, Sierra Club Legal Defense Fund, Bozeman, MT, Martha McCabe, Austin, TX, for Sierra Club.
Barbara Lowe, Philadelphia, PA, Ingrid Karin Hansen, Ashley Kingsland Wadick, Austin, TX, for Wilderness Society.
Edward C. Fritz, Dallas, TX, Barbara Lowe, Philadelphia, PA, for Texas Committee on Natural Resources.
Daniel A. Bowen, U.S. Dept. of Agriculture, Office of General Counsel, Temple, TX, for R. Max Peterson.
Ruth Harris Yeager, Asst. U.S. Atty., U.S. Attorney's Office, Tyler, TX, Jean Williams, U.S. Dept. of Justice, Martin W. Matzen, U.S. Dept. of Justice, Appellate Section, Kathryn Toffenetti, U.S. Dept. of Agriculture, Office of General Counsel, Washington, DC, Daniel A. Bowen, U.S. Dept. of Agriculture, Office of General Counsel, Temple, TX, Nadira Clarke, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, DC, for John E. Alcock, William M. Lannan, F. Dale Robertson.
Ruth Harris Yeager, Asst. U.S. Atty., U.S. Attorney's Office, Tyler, TX, Wells D. Burgess, U.S. Dept. of Justice, Land & Natural Resources Div., Jean Williams, U.S. Dept. of Justice, Martin W. Matzen, U.S. Dept. of Justice, Appellate Section, Kathryn Toffenetti, U.S. Dept. of Agriculture, Office of General Counsel, Washington, DC, Daniel A. Bowen, U.S. Dept. of Agriculture, Office of General Counsel, Temple, TX, Nadira Clarke, U.S. Dept. of Justice, Land & Natural Resources Div., Stephanie M. Parent, Lisa A. Holden, U.S. Dept. of Justice, Environmental & Natural Resources, General *911 Litigation Section, Washington, DC, for Daniel Glickman.
Ruth Harris Yeager, Asst. U.S. Atty., U.S. Attorney's Office, Tyler, TX, Wells D. Burgess, U.S. Dept. of Justice, Land & Natural Resources Div., Jean Williams, U.S. Dept. of Justice, Kathryn Toffenetti, U.S. Dept. of Agriculture, Office of General Counsel, Washington, DC, Daniel A. Bowen, U.S. Dept. of Agriculture, Office of General Counsel, Temple, TX, for John R. Block.
Stephanie M. Parent, Lisa A. Holden, U.S. Dept. of Justice, Environmental & Natural Resources, General Litigation Section, Washington, DC, for Federal Defendants.
Ruth Harris Yeager, Asst. U.S. Atty., U.S. Attorney's Office, Tyler, TX, Wells D. Burgess, U.S. Dept. of Justice, Land & Natural Resources Div., Stephanie M. Parent, Lisa A. Holden, U.S. Dept. of Justice, Environmental & Natural Resources, General Litigation Section, Washington, DC, for Gloria manning, Michael Dombeck, Ronald Raum.
John C. Fleming, James Roy Cornelius, Zeleskey Cornelius Hallmark Roper & Hicks, Lufkin, TX, Stephen P. Quareles, J. Michael Klise, Thomas R. Lundquist, Crowell & Moring, Washington, DC, for Texas Forestry Ass'n, Southern Timber Purchasers Council.
MEMORANDUM OPINION, ORDER, AND INJUNCTION WITH SUPPORTING FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE EVEN-AGED MANAGEMENT AND INVENTORYING-MONITORING ISSUES
SCHELL, Chief Judge.
The Sierra Club, Texas Committee on Natural Resources ("TCONR"), and The Wilderness Society (collectively "Plaintiffs") brought this action challenging the United States Forest Service's management of the National Forests in Texas. The Texas Forestry Association and Southern Timber Purchasers Council (collectively "Timber Intervenors") have intervened. The broad issue before the court is whether the Forest Service is complying with the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-14 and related regulations, 36 C.F.R. § 219.1-29 (hereinafter "NFMA regulations" or "regulations"). The NFMA and regulations generally require: (1) diversity of plant and animal communities as well as tree species, (2) protection of key resources, and (3) inventorying and monitoring for key resources, diversity, and effects of management activities. Considering the evidence adduced at trial, legal argument of counsel, and the parties' respective proposed findings of fact and conclusions of law, the court is of the opinion that the Forest Service has stepped outside its discretion and acted arbitrarily and capriciously with respect to (1) protecting the key resources of soil and watershed and (2) inventorying and monitoring the wildlife resource, forest diversity, and whether the Forest Service is meeting its objectives and adhering to standards and guidelines with respect to wildlife.
With respect to the soil resource, the evidence shows that the Forest Service's management activities are causing severe soil erosion and loss of essential organic matter. This loss of soil and organic matter substantially and permanently affects the productivity of the land. Without rich forest soil, plant and animal communities suffer as well as the forest land's ability to produce healthy timber stands. With respect to the watershed resource, Forest Service management practices are causing substantial and permanent (1) erosion within waterways, (2) deposit of soil, silt, and sedimentation in waterways, and (3) disruption of water run-off. Additionally, the Forest Services's practice of permitting timber harvesting in streamside management zones exacerbates the erosion and sedimentation problems and causes the deposit of logging debris in streams. This derogation of the streams (1) destroys plant, animal, and fish habitat and (2) contributes to flooding.
With respect to the Forest Service's inventorying and monitoring obligations, the Forest Service is not collecting population data on wildlife to ensure viable populations. The Forest Service instead is relying on hypothetical models to assess habitat capability and then assuming that viable populations of species are in existence and well-distributed on the forest land. The Forest Service's failure to collect population data forecloses its ability to evaluate forest diversity in terms of wildlife and to adequately determine *912 the effects of its management activities. The Forest Service's failure to adequately inventory and monitor may be causing permanent and substantial damage to the productivity of the land. Sufficient inventorying and monitoring of forest resources is vital to making sound, forest-management decisions and ultimately protecting the forest resources from permanent impairment. In light of the Federal Defendants' noncompliance with the NFMA and regulations, the court will enjoin certain timber harvesting activities until the Forest Service demonstrates compliance "on-the-ground."
BACKGROUND
This case has spanned over a decade and involved many complex issues.[1] In this stage of the case, Plaintiffs allege that the Forest Service is violating the NFMA and regulations. The court articulated the issues for trial in a prior order:
(1) Whether the Forest Service has, in practice, as required by the regulations, kept current and adequate inventories and monitoring data for key resources in the national forests in Texas; (2) Whether the Forest Service has, in practice, as required by the regulations, protected key resources in its application of even-aged management techniques; and (3) Whether the Forest Service has, in practice, as required by the regulations, provided for diversity of plant and animal communities in its application of even-aged management techniques.
Court's Order of Aug. 21, 1995.
Plaintiffs previously challenged the Forest Service's even-aged management practices.[2] After the Chief of the Forest Service "shutdown" TCONR's administrative appeal, TCONR and the other Plaintiffs here sought (1) a declaration that the Forest Service's even-aged management practices did not comply with the National Environmental Policy Act ("NEPA"),[3] 42 U.S.C. § 4321, et seq. and the NFMA, and (2) an injunction against all even-aged management practices. Sierra Club v. Espy, 822 F. Supp. 356, 358 (E.D.Tex. 1993). Unlike the "on-the-ground" challenge now before the court, Plaintiffs argued that the Forest Service's planning documents[4] "on-their-face" violated NEPA and the NFMA. Id. at 359. The Honorable Robert M. Parker, then Chief Judge of the Eastern District of Texas, determined that the Forest Service was violating NEPA and the NFMA. Id. at 366-68. Specifically, in its planning documents, the Forest Service failed to consider important information and various cutting *913 options. Id. The court reasoned that Plaintiffs were likely to succeed on their NEPA claims because the Forest Service had "`swept' some significant environmental considerations and criticisms of its scheduled even-aged management actions `under the rug,' or failed to give good faith, meaningful consideration to foreseeable, statutorily important, environmental consequences of its planned even-aged logging activities." Id. at 368. The court also reasoned that Plaintiffs were likely to succeed on their NFMA claims because the Forest Service used even-aged management as the "rule" when, in fact, the NFMA "contemplates that even-aged management techniques will be used only in exceptional circumstances." Id. at 363-64.
The Court of Appeals for the Fifth Circuit reversed the district court's decision. Sierra Club v. Espy, 38 F.3d at 795. The Fifth Circuit disagreed with the district court's interpretation that the NFMA provides that even-aged management is an exception to a rule of uneven-aged management.[5]Id. at 799. The Fifth Circuit stated:
That even-aged management must be the optimum or appropriate method to accomplish the objectives and requirements set forth in a [Land Resource Management Plan] does not mean that even-aged management is the exception to a rule that purportedly favors selection management. Similarly, the requirement that even-aged logging protect forest resources does not in itself limit its use. Rather, these provisions [in the NFMA] mean that the Forest Service must proceed cautiously in implementing an even-aged management alternative and only after a close examination of the effects that such management will have on other forest resources.
Sierra Club v. Espy, 38 F.3d at 799. In making this determination, the Fifth Circuit relied on Texas Comm. on Natural Resources v. Bergland, 573 F.2d 201 (5th Cir. 1978) ("Bergland"). Following its reasoning in Bergland, the Fifth Circuit explained:
Congress, after hearing testimony on both sides of the clearcutting issue, struck a delicate balance between the benefits of clearcutting and the benefits of preserving the ecosystems and scenic quality of natural forests. Specifically, NFMA was an effort to place the initial technical, management responsibility for the application of NFMA guidelines on the responsible government agency, in this case the Forest Service. The NFMA is a set of outer boundaries within which the Forest Service must work. We then cautioned the Forest Service that clearcutting could not be justified merely on the basis that it provided the greatest dollar return per unit output; rather, clearcutting must be used only where it is essential to accomplish the relevant forest management objectives.
Sierra Club v. Espy, 38 F.3d at 798-99 (internal citations and quotation marks omitted).
The Fifth Circuit then determined that the Forest Service's timber-sale planning documents, i.e., the Environmental Assessments, complied with the NFMA. Interpreting the NFMA and regulations, the Fifth Circuit stated:
The directive that national forests are subject to multiple uses, including timber uses, suggests that the mix of forest resources will change according to a given use. Maintenance of a pristine environment where no species' numbers are threatened runs counter to the notion that NTMA contemplates both even- and uneven-aged timber management. Indeed, NFMA regulations anticipate the possibility of change and provide that "[r]eductions in diversity of plant and animal communities and tree species from that which would be expected in a natural forest, or from that similar to the existing diversity in the planning area, may be prescribed *914 only where needed to meet overall multiple-use objectives." 36 C.F.R. § 219.27(g); see also 16 U.S.C. § 1604(g)(3)(C) (LRMP must ensure research and evaluation of effects of each management system to assure no "substantial and permanent impairment" of land productivity) (emphasis added); 16 U.S.C. § 1604(g)(3)(E)(i) (LRMP must provide that timber be harvested only where "soil, slope, or other watershed conditions will not be irreversibly damaged") (emphasis added). That protection means something less than preservation of the status quo but something more than eradication of species suggests that this is just the type of policy-oriented decision Congress wisely left to the discretion of the experts here, the Forest Service.
Id. at 800. The Fifth Circuit, however, warned:
The Forest Service's discretion, however, is not unbridled. The regulations implementing NFMA provide a minimum level of protection by mandating that the Forest Service manage fish and wildlife habitats to insure viable populations of species in planning areas. 36 C.F.R. § 219.19. In addition, the statute requires the Forest Service to "provide for diversity of plant and animal communities." 16 U.S.C. § 1604(g)(3)(B).
Id. at 800-01. The Fifth Circuit interpreted the NFMA and regulations to actually require the Forest Service to comply with the law on-the-ground rather than merely including precatory standards and guidelines in its planning documents.
JURISDICTION
The court has jurisdiction over this action. "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Administrative Procedure Act ("APA"), 5 U.S.C. § 702. "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704 "`[A]gency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act...." 5 U.S.C. §§ 551(13), 701(b)(2) (emphasis added). "When an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule, the agency action is final for the purposes of [section 704] and therefore subject to judicial review...." Darby v. Cisneros, 509 U.S. 137, 146, 113 S. Ct. 2539, 2544, 125 L. Ed. 2d 113 (1993) (internal quotation marks omitted). "While federal courts may be free to apply, where appropriate, other prudential doctrines of judicial administration to limit the scope and timing of judicial review, [section 704], by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates." Id.
Under the APA, this court has jurisdiction to review the Forest Service's failure to act with respect to alleged on-the-ground violations of the NFMA and regulations. NFMA regulations provide for administrative review of a Forest Service determination to make a specific sale of timber. 36 C.F.R. § 215.7. But no statute or regulation provides for an administrative review of agency actions after the sale with respect to implementing a LRMP in accordance with the NFMA. While an initial decision to offer a timber sale is appealable, subsequent implementing actions are not.[6] 36 C.F.R. § 215.8(b).
The Forest Service's failure to implement timber sales in compliance with the NFMA and regulations, as alleged by Plaintiffs, is a final agency action for purposes of section 704. Once the Forest Service adopted a final, definite course of action or inaction with respect to the management of the forest lands (regardless of whether that action or inaction is memorialized in a written agency decision), the court has a "final agency action" to review. A contrary view, held by the Federal Defendants and Timber Intervenors, *915 would put all of the Forest Service's on-the-ground violations of the NFMA and regulations beyond judicial review. Under this view, the Forest Service seeks absolute immunity from its on-the-ground management activities. Awaiting future Forest Service timber-sale or planning decisions would not assist the court in determining whether the Forest Service is complying with the law on-the-ground. For example, neither the 1996 Land Resource and Management Plan ("1996 LRMP")[7] nor any future timber sales under that Plan would put this court in a better position to determine whether the Forest Service has complied with the NFMA and regulations with respect to implementation of past timber sales.
Defendants argue that the issues before the court are moot because of the adoption of the 1996 LRMP that supersedes the 1987 LRMP. Federal Defs.' Proposed Findings of Fact and Conclusions of Law at 108-09; Timber Intervenors' Closing Argument on the NFMA Issues at 2-4. They also argue that the 1996 LRMP will govern all future timber sales and monitoring activities. A federal district court's jurisdiction depends on a justiciable controversy under the constitutional case-or-controversy requirement. See U.S. Const. art. III, § 2, cl. 1. A justiciable controversy is one that is not moot. "The mootness doctrine requires that the controversy posed by the plaintiffs complaint be `live' not only at the time the plaintiff files the complaint but also throughout the litigation process."[8]Rocky v. King, 900 F.2d 864, 866 (5th Cir.1990). A live controversy must have an injury traceable to the actions of the defendants and susceptible to some judicial remedy. Baccus v. Parrish, 45 F.3d 958, 961 (5th Cir.1995).
This action is not moot. Plaintiffs, as alleged, continue to suffer from the Forest Service's alleged past and ongoing violations of the NFMA and regulations. Plaintiffs allege that the Forest Service's even-aged logging activities, regardless of whether they are under the old or new LRMP, violate the NFMA and regulations with respect to implementation of past timber sales. If violations are ultimately determined to have been occurring, adoption of the 1996 LRMP does not guarantee that the Forest Service will comply on-the-ground with the NFMA and regulations. If continuing violations are found, the court can fashion a judicial remedy.
STANDARDS OF REVIEW
Section 706 of the APA establishes the scope of review for this action. Section 706 provides:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall
(1) compel agency action unlawfully withheld or unreasonably delayed; and
*916 (2) hold unlawful and set aside agency action, findings, and conclusions found to be
(a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....
5 U.S.C. § 706. The arbitrary and capricious standard of section 706 applies in determining whether the Forest Service has complied with the NFMA and regulations. Sierra Club v. Espy, 38 F.3d at 798. Under the APA's arbitrary and capricious standard, "administrative action is upheld if the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Sierra Club v. Glickman, 67 F.3d at 97. In other words, to make a finding that the Forest Service's actions were arbitrary and capricious, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 823-24, 28 L. Ed. 2d 136 (1971). "Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id.
In determining statutory compliance with the NFMA, the court must conduct a careful review:
[T]he starting point in every case involving construction of a statute is the language itself. We must give effect to the unambiguously stated intention of Congress. In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy. However, an agency's construction of an ambiguous statute it administers will be upheld so long as that construction is reasonable.
Sierra Club v. Espy, 38 F.3d at 798 (internal quotation marks and citations omitted). In determining whether the Forest Service complied with its own regulations, a court must give even greater deference to the Forest Service's interpretation. The Forest Service's interpretation of its own regulations will control if that interpretation is not "`plainly erroneous or inconsistent with the regulations.'" Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S. Ct. 1835, 1850, 104 L. Ed. 2d 351 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S. Ct. 1215, 1217, 89 L. Ed. 1700 (1945)). Absent proof of arbitrary and capricious action, courts must assume that the agency has exercised its discretion appropriately. Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S. Ct. 2718, 2731, 49 L. Ed. 2d 576 (1976). The party challenging the agency action bears the burden of proof. Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995).
Federal officials or an agency are presumed to carry out their duties in compliance with the law. Diaz-Soto v. I.N.S., 797 F.2d 262, 264 (5th Cir.1986) (citing Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. at 823). "But that presumption is not to shield [agency] action from a thorough, probing, in-depth review." Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. Under this standard, the court must determine whether the agency's actions are within the substantive "outer boundaries" or limitations of the NFMA. See, e.g., Bergland, 573 F.2d at 210. "The NFMA is a set of outer boundaries within which the Forest Service must work. Within its parameters, the management decision belongs to the agency and should not be second-guessed by a court." Id.
In reviewing Forest Service management activities that require a high level of technical experience, a court must defer to the informed discretion of the Forest Service. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S. Ct. 1851, 1861, 104 L. Ed. 2d 377 (1989) (citing Kleppe v. Sierra Club, 427 U.S. at 412, 96 S.Ct. at 2731). "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh, 490 U.S. at 378, 109 S.Ct. at 1861. A court, however, must hold the Forest Service to "certain minimal standards of rationality." Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 329 (5th Cir.1988) (internal citations and quotation marks omitted). Forest *917 Service decisions, even within its area of expertise, must be based on a reasoned evaluation of relevant factors. See Marsh, 490 U.S. at 378, 109 S.Ct. at 1861-62.
Timber Intervenors argue that the NFMA and regulations do not provide sufficient legal standards for a court to determine whether the Forest Service is complying with the law on-the-ground. Timber Intervenors state: "The NFMA and most of the regulations provide no law to apply to [Plaintiffs'] claims of on-the-ground violations." Timber Intervenors' Closing Argument on the NFMA Issues at 8. Timber Intervenors further argue that the NFMA and regulations merely require the Forest Service to plan management activities rather than actually carry them out on-the-ground. Timber Intervenors argue: "The NFMA and the 36 C.F.R. Part 219 regulations do not create standards which apply to on-the-ground effects of even-aged management." Id. at 6 (emphasis in original). Under the Timber Intervenors' interpretations of the NFMA and regulations, no federal court could review the Forest Service's management of the National Forests and determine whether the Forest Service is complying with the law on-the-ground. Under their interpretation, review would be limited to the facial content of the planning documents rather than actual, on-the-ground management activities. In essence, Timber Intervenors are proposing immunity for the Forest Service's actions on-the-ground.
While acknowledging the Forest Service's discretion in managing the forests, the Fifth Circuit, however, Circuit, however, has rejected the Timber Intervenors' interpretation of the NFMA and regulations:
The Forest Service's discretion, however, is not unbridled. The regulations implementing NFMA provide a minimum level of protection by mandating that the Forest Service manage fish and wildlife habitats to insure viable populations of species in planning areas. 36 C.F.R. § 219.19. In addition, the statute requires the Forest Service to "provide for diversity of plant and animal communities." 16 U.S.C. § 1604(g)(3)(B).
Sierra Club v. Espy, 38 F.3d at 800-01. Here, as noted previously, the Fifth Circuit is interpreting the NFMA and regulations to require the Forest Service to comply with the law on-the-ground rather than merely including precatory standards and guidelines in its planning documents. Moreover, while section 1604(g) of the NFMA requires the Secretary of Agriculture to promulgate regulations for Forest Service planning, this section also mandates that the regulations set out guidelines for land management that actually achieve the goals set out for the Forest Service. See, e.g., 16 U.S.C. § 1604(g)(3). "The NFMA and its implementing regulations require[] the Forest Service to follow a range of legal standards in developing local forest plans and to manage the national forests in accordance with the plans." CHARLES F. WILKINSON & H. MICHAEL ANDERSON, LAND AND RESOURCE PLANNING IN THE NATIONAL FORESTS 45 (1987) (emphasis added). "The NFMA ... require[s] courts to scrutinize forest plans, and activities based on those plans, on both procedural and substantive grounds." Id. at 74. Therefore, based on the foregoing interpretations of the NFMA and regulations, there are sufficient legal standards available to review the Forest Service's actions. And, its actions are not wholly "committed to agency discretion by law" under section 701(a)(2) of the APA. See, e.g., Webster v. Doe, 486 U.S. 592, 599, 108 S. Ct. 2047, 2051-52, 100 L. Ed. 2d 632 (1988) (noting that 701(a)(2) "applies in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply") (internal citations and quotation marks omitted).
BACKGROUND FINDINGS
Throughout this opinion, all findings of fact that could be construed as conclusions of law are to be construed as such, and all conclusions of law that could be construed as findings of fact are to be construed as such. Findings of fact in any one section of this opinion are hereby incorporated into every other section. All findings of fact are to be construed as being made in the past and present verb tense. The citations to the trial record that follow some of the findings of fact are for the reviewing court's convenience and not necessarily inclusive of all the evidentiary support for the court's findings. Citations to *918 the trial-record transcript are indicated by "R. page/line(s)."
1. The National Forests and Grasslands in Texas are comprised of four separate forests and two grasslands. The total acreage for the National Forests and Grasslands is approximately 675,000 acres. R. 792/10-12; Gov't Ex. 15, Final Land Resource Management Plan dated April 1987 ("1987 LRMP"), at 1-3.
2. The National Forests cover approximately 639,000 acres and are the Sam Houston, Davy Crockett, Angelina, and Sabine. R. 728/23 to 729/10, 776/12-20. There is no commercial timber harvesting on the grasslands, and therefore, the management of the grasslands is not at issue in this action. Gov't Ex. 15, 1987 LRMP, at IV-69. Findings of fact and conclusions of law in this opinion regarding acreage, volume, and percentages are limited to the four National Forests.
3. As of 1991: the Sam Houston National Forest contained approximately 161,000 acres; the Davy Crockett National Forest contained approximately 162,000 acres; the Angelina National Forest contained approximately 153,000 acres; and the Sabine National Forest contained approximately 160,600 acres. Gov't Ex. 19, Five Year Review/AMS dated March 1992 ("1992 Five Year Review"), at 16-3 to 16-4. Each National Forest has a proclamation boundary and within that boundary lies the actual United States Forest Service ownership. R. 751/24 to 752/4; Gov't Ex. 19, 1992 Five Year Review, at 16-3 to 16-4. The Forest Service owns 37% of the lands within the proclamation boundaries. Id.; Gov't Ex. 16, Draft Environmental Impact Statement dated September 1994 ("1994 DEIS"), at 124.
4. A map of the National Forests in Texas reveals a fragmented landscape that is the result of private holdings separating large segments of the forest and inholdings fragmenting even those more cohesive segments. Gov't Ex. 176.
5. The land for the forests was purchased in the late 1930s and early 1940s pursuant to the Weeks Act of 1911, as amended, and by authorization from the Texas Legislature. Gov't Ex. 15, 1987 LRMP, at 1-3; Gov't Ex. 19, 1992 Five Year Review, at 12-126.
6. The approximate 639,000 acres of the four National Forests are divided into compartments, which are administrative units to allow for more efficient management and record keeping. R. 873/13-19. Each compartment is divided into stands. R. 93/12-13.
7. The Forest Service deems approximately 521,018 acres to be suitable for timber production. Gov't Ex. 15, 1987 LRMP, at IV-11.
8. Although each stand and compartment is different, the activities occurring on Compartment 98 of the Sam Houston National Forest are generally typical of even-aged regeneration activities across the National Forests in Texas. R. 1258/20-23. Even-aged practices on one part of the planning area are generally similar to even-aged practices in other areas. R. 649/21 to 650/21.
PROVIDING FOR DIVERSITY
Findings of Fact
1. The Forest Service in Texas began practicing even-aged management techniques in the early 1960s. Gov't Ex. 19, 1992 Five Year Review, at 12-128.
2. The even-aged system was the predominant management system used to regenerate timber under the 1987 LRMP. R. 764/9-11. The 1987 LRMP specified that approximately 60% of the pine acreage in the suitable land classification would be regenerated by clearcut and that 40% of the regeneration would be by the other even-aged methods of seedtree or shelterwood. Gov't Ex. 15, 1987 LRMP, at IV-15.
3. Pursuant to the Chief of the Forest Service's decision on remand of Plaintiffs' appeal of the 1987 LRMP, the determination of whether to utilize even-aged management in a timber sale is now made at the project level. Sierra Club v. Espy, 822 F.Supp. at 359 n. 5 (discussing the 1989 decision); Gov't Ex. 243A, 1996 LRMP, at 9.
4. Even-aged management diminishes many of the plant and animal species native to the National Forests in Texas, and some plant and animal species may be irretrievably lost. R. 123/16 to 124/7, 254/9 to 261/3, 268/13 to 274/13, 456/4-24, 462/8-16, 656/10-11, *919 672/10 to 674/4, 1403/23 to 1404/6, 1582/5-14, 1608/21 to 1609/4.
5. The natural ecosystem of the National Forests in Texas contains mostly mixed forests of pine and hardwood. Gov't Ex. 19, 1992 Five Year Review, at 3-70, no. 1; Gov't Ex. 243A, 1996 LRMP, at 10.
6. The even-aged management practices maximize the production of southern pines (loblolly, shortleaf, and longleaf) and reduce hardwood tree species. R. 452/4-19, 456/4-24, 466/5 to 467/3, 656/7 to 658/9; Gov't Ex. 15, 1987 LRMP, at J-4 to J-11.
7. Under the 1987 LRMP, the even-aged management areas were, at times, referred to as "pine plantations." Gov't Ex. 15, 1987 LRMP, at IV-55.
8. Even-aged management is not permitted in certain areas of the National Forests in Texas. Commercial timber production of any kind is precluded on approximately 95,000 acres or 14.9% of the National Forests in Texas, e.g., wilderness and scenic areas. R. 754/7-11; Gov't Ex. 15, 1987 LRMP, at IV-11 to IV-12, Amendment 6 at 8.
9. The 1987 LRMP contemplated that even-aged management would be carried out on approximately 10% (63,840 acres) of the total National Forest land over ten years. Gov't Ex. 15, 1987 LRMP, at IV-53. But, since the approval of the 1987 LRMP, the Forest Service has actually carried out even-aged regeneration on approximately 3.8% of the total National Forest land. R. 766/23, 792/8.
10. In 1995, 0.2% of the National Forests in Texas were harvested using even-aged regeneration. R. 766/23. The breakdown for each prior year is: 1.2% in 1987; 1% in 1988; 0.3% in 1989; 0.4% in 1990; 0.2% in 1991; 0.2% in 1992; 0.2% in 1993; and 0.2% in 1994. R. 766/9-23.
11. The estimate of 3.8% does not account for salvage volume because salvage is in response to an unplanned and unexpected happening or event. R. & 05/1 to 807/24, 872/20-25. Salvage is not a part of even-aged management. Id. For illustrative purposes, however, the total acreage of timber subject to even-aged harvesting and salvage for the last nine years represents approximately 8% of the forested lands on the four National Forests. R. 767/20, 808/2-5.
12. This number rises to 9.5% when it is calculated for only those forested lands suitable for commercial timber harvest, thus excluding the approximately 95,000 acres of unsuitable area. R. 808/12 to 809/7.
13. The National Forests in Texas consist of uneven-aged forests made up of even-aged stands. R. 993/23-24, 1406/22-23, 1443/19 to 1444/14. Even-aged management across the forests creates a mosaic of tree stands of different ages, classes, and species mixes, thus providing for a mosaic of different habitats. See, e.g., Gov't Exs. 236-37 (map and key demonstrating the mosaic of age-class distribution on the Angelina National Forest); Gov't Exs. 238-39 (map and key demonstrating the mosaic of forest type or species-class distribution on the Angelina National Forest).
14. To manage for diversity, the Forest Service tracks and provides for a diversity of habitats by collecting information on tree species. The Continuous Inventory of Stand Conditions database provides an overview of the age-class distribution for all National Forests in Texas. Gov't Ex. 95; R. 889/14 to 891/4.
15. There is controversy about what a "natural" forest is because ecological systems are dynamic and change through time. R. 311/5-15, 1547/1-11.
16. There is general consensus among plant ecologists, however, to use close to pre-European settlement of North America as a reference point for what is "natural" because it is the first point in time in which there are a variety of lines of evidence from which ecologists can reconstruct vegetation patterns. R. 1547/16-24.
17. A variety of factors determined what the pre-European settlement or "natural" forest looked like. In addition to landscape location and physical variables such as nearness to water or soil texture and fertility, disturbances had an important influence in shaping the composition and structure of forests throughout the Southeast. R. 1555/3-12.
18. A "disturbance" is an event or occurrence that abruptly disrupts the forest structure and process. A disturbance can be *920 caused naturally or by man. R. 1556/7-13. Just as forests were variable on the landscape, the disturbance regimes found in these forests also varied. And, the structure and composition of the forests influenced the disturbance regime. R. 1557/15-22. Disturbances that contributed to the pre-European or "natural" forest were fire and wind events, impacts of insects and disease, and flooding. R. 1555/13 to 1556/3, 1650/3 to 1657/2, 1659/21 to 1663/8.
19. Some evidence shows that, under natural circumstances, East Texas may have been an uneven-aged forest made up of even-aged patches caused by disturbances. R. 993/23 to 994/1, 1569/6-14, 1605/12 to 1606/5 (literature has mixed information).
20. Even-aged management introduces a variety of disturbances. R. 1556/17-18.
21. The disturbances created by even-aged management are similar to fire and wind disturbances in some ways. With the exception of site preparation activities, harvesting by an even-aged method results in openings in the canopy somewhat similar to that which occurs naturally through wind events. R. 1570/8-21. The two are dissimilar in that canopy openings that occur from wind events will vary widely in size and distribution over the forest, while canopy openings that occur as a result of even-aged harvesting will be generally even-sized and evenly distributed over the forest landscape. On average, the openings created by even-aged harvesting will be approximately 30 acres, which is within the range of natural disturbances. R. 1570/21 to 1572/11.
22. Even-aged management, if uniformly applied, produces fairly moderate-size habitat patches distributed across the landscape. R. 1576/18 to 1582/10; Gov't Ex. 236, 237 (map showing patches of age-class as distributed over the Angelina National Forest).
23. Three groups of organisms are adversely impacted by the characteristics of an even-aged managed forest: (1) species dependent on large patches of interior forests; (2) species dependent upon characteristics of old forests; and (3) species that cannot tolerate the change in stand conditions at the micro-level such as change in temperature or sunlight. R. 1584/3 to 1885/15.
24. Species such as neotropical migrants, which depend on larger, uninterrupted older forest, are provided for in the National Forests in Texas because there are large areas of the forest not dedicated specifically to even-aged management, e.g., wilderness areas, scenic areas, and other special management or interest areas. These areas will continue to be old forest and are dispersed across the forests in a way that provides required habitat for organisms like neotropical migrants. In addition, even within areas that are designated as general forest management areas (where even-aged management may occur), there are fairly large pieces of bottomland hardwood forest that remain uncut and fairly intact habitats for neotropical migrants (R. 1586/16 to 1587/24) and a significant amount of large, older even-aged stands necessary to the birds' survival (R. 1401/19 to 1402/11).
Conclusions of Law and Analysis
Section 1604(g)(3)(B) of the NFMA provides:
(g) Promulgation of regulations for development and revision of plans; environmental considerations; resource management guidelines; guidelines for land management plans. As soon as practicable, ... the Secretary shall ... promulgate regulations, under the principles of the Multiple-Use Sustained-Yield Act of 1960, that set out the process for the development and revision of the land management plans, and the guidelines and standards prescribed by this subsection. The regulations shall include, but not be limited to
* * * * * *
(3) specifying guidelines for land management plans developed to achieve the goals of the Program which
* * * * * *
(B) provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to *921 the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan....
16 U.S.C. § 1604(g)(3)(B). The "multiple-use objectives" are set forth in the Multiple-Use Sustained-Yield Act of 1960 ("MUSYA"), 16 U.S.C. §§ 528-31. MUSYA requires (1) that the National Forests be managed for the "multiple use" of various renewable resources, including "recreation, range, timber, watershed, and wildlife and fish," and (2) that the "periodic output" of such resources be maintained "in perpetuity ... without impairment of the productivity of the land." 16 U.S.C. §§ 528, 529, 531. MUSYA recognizes that "some land will be used for less than all of the resources." 16 U.S.C. § 531(a).
After extensively reviewing the legislative history of the NFMA and regulations, Wilkinson and Anderson conclude:
[S]ection 6(g)(3)(B) has three complementary meanings in the context of timber planning. First, it is a general mandate to bring timber production into balance with wildlife and ecological values. Second, it limits the use of forest conversions to cases where the conversion can be justified by its benefit to nontimber resources. Third, it prohibits monoculture. These three elements, when taken together, require the Forest Service to look at the forest as an ecological whole and to ensure that, over time, the forest is not converted into a "tree farm."
WILKINSON & ANDERSON, supra, at 173.
The NFMA requires that the Secretary of Agriculture promulgate regulations that provide for diversity. The Secretary promulgated two sections related to diversity: 36 C.F.R. §§ 219.26, 219.27(a)(5), (g). Section 219.26 provides:
Forest planning shall provide for diversity of plant and animal communities and tree species consistent with the overall multiple-use objectives of the planning area. Such diversity shall be considered throughout the planning process. Inventories shall include quantitative data making possible the evaluation of diversity in terms of its prior and present condition. For each planning alternative, the interdisciplinary team shall consider how diversity will be affected by various mixes of resource out-puts and uses, including proposed management practices. (Refer to § 219.27(g).)
36 C.F.R. § 219.26. Section 219.27 provides in part:
The minimum specific management requirements to be met in accomplishing goals and objectives for the National Forest System are set forth in this section. These requirements guide the development, analysis, approval, implementation, monitoring and evaluation of forest plans. (a) Resource protection. All management prescriptions shall,
* * * * * *
(5) Provide for and maintain diversity of plant and animal communities to meet overall multiple-use objectives, as provided in paragraph (g) of this section;
* * * * * *
(g) Diversity. Management prescriptions, where appropriate and to the extent practicable, shall preserve and enhance the diversity of plant and animal communities, including endemic and desirable naturalized plant and animal species, so that it is at least as great as that which would be expected in a natural forest and the diversity of tree species similar to that existing in the planning area. Reductions in diversity of plant and animal communities and tree species from that which would be expected in a natural forest, or from that similar to the existing diversity in the planning area, may be prescribed only where needed to meet overall multiple-use objectives. Planned type conversion shall be justified by an analysis showing biological, economic, social, and environmental design consequences, and the relation of such conversions to the process of natural change.
36 C.F.R. § 219.27(a)(5), (g) (emphasis in original).
The Committee of Scientists, appointed by the Secretary of Agriculture, provided advice on the regulations. 16 U.S.C. § 1604(h); see also WILKINSON & ANDERSON, supra at 43-44 (explaining the work of the Committee of Scientists). With respect to diversity, the Committee of Scientists stated that the NFMA regulations "`should go beyond a narrow and limited restatement of the language *922 of the [NFMA] to assure that the Forest Service shall indeed "provide for" diversity by maintaining and preserving existing variety.'" WILKINSON & ANDERSON, supra, at 194-95 (quoting Final Report of the Committee of Scientists, 44 Fed.Reg. 26,609 (1979)). "Reductions in diversity such as forest type conversions are permitted only where needed to meet overall multiple-use objectives and must be justified by an elaborate analysis of potential consequences." WILKINSON & ANDERSON, supra, at 195. "[T]he NFMA regulations require Forest Service planners to deal with diversity on a comprehensive basis, rather than limiting their focus to the issue of forest conversion and monoculture. Planners must ensure that the essential ecological components of each national forest are adequately protected." Id.
The Committee of Scientists, however, ultimately concluded that it was impossible to write specific regulations that would provide for diversity. The Committee of Scientists stated:
Provision for "diversity" as required by NFMA is one of the most perplexing issues dealt with in the draft regulations. We believe it is impossible to write specific regulations to "provide for" diversity.
44 Fed.Reg. 26,600-01. "Although the statement of policy [to provide for diversity] is clear, there remains a great deal of room for honest debate on the translation of policy into management planning requirements and into management programs." Id. at 26,608. Section 219.3 broadly defines "diversity" as "[t]he distribution and abundance of different plant and animal communities and species within the area covered by a land and resource management plan." 36 C.F.R. § 219.3. But the regulations do not dictate that the Forest Service analyze diversity in any specific way, and courts defer to the Forest Service's method of diversity unless it is irrational. See Sierra Club v. Marita, 46 F.3d at 621. "[I]t is difficult to discern any concrete legal standards on the face of [section 1604(g)(3)(B)]." WILKINSON & ANDERSON, supra, at 296. While acknowledging the debate over the precise meaning of "diversity," the Fifth Circuit has not defined the "outer boundaries" of the NFMA's protection and diversity requirements. Sierra Club v. Espy, 38 F.3d at 801.
The Forest Service's even-aged management practices may be diminishing "diversity," particularly at the "alpha" level.[9] Documentary evidence and testimony at trial, including some from the Federal Defendants' witnesses, showed that even-aged management, as practiced by the Forest Service in the National Forests in Texas, substantially alters plant and animal habitat as well as creates monocultures of pine trees. The plant and animal habitat is altered when even-aged management practices remove the protective forest canopy and expose the forest floor to sunlight. Even-aged management also involves site preparation activities such as shearing and piling of vegetation from the forest floor. When the canopy is removed, plant and animal life that depends on the canopy is diminished. Once an area is harvested under even-aged management, pine trees are regenerated, often removing any competing hardwoods. The Forest Service has referred to these areas as "pine plantations."
Defendants argue that despite the loss of some species of plants and animals under even-aged management, those species are replaced by different species under the even-aged forest habitat. Defendants further argue that even though a species may be eradicated from a particular management area, other areas of the forest (e.g., wilderness and scenic) provide sufficient habitat for species that cannot survive even-aged management practices. For example, although a Forest Service scientist testified that some bird species would not survive in the mosaic of even-aged stands, other areas of the forest would provide sufficient habitat for the species.
With respect to the pine monocultures, the Federal Defendants presented some evidence that the "natural" forest may have been an uneven-aged forest made up of even-aged patches. Defendants argue that the Forest Service's even-aged management activities *923 are designed to mimic the natural processes of pre-European settlement forests. The Forest Service justifies the use of fire and other methods (e.g., herbicides) to remove hardwoods by claiming that these practices are similar to the frequency of fire in the natural, pre-European settlement forest. The Forest Service's hypothesis that the Texas forests were predominantly pine in their natural state, however, is undermined by their regular practice of having to eradicate hardwoods and other plant life that naturally compete with the pine trees shortly after harvesting and regeneration. This practice must be to meet other multiple-use objectives such as timber production. See 16 U.S.C. § 1604(g)(3)(B).
The Forest Service's even-aged management practices are drastically reducing plant and animal species in some areas of the forest and creating areas of pine monoculture. But, the court cannot conclude that the Forest Service's actions are irrational or otherwise arbitrary and capricious. The regulations do not dictate that the Forest Service analyze diversity in any specific way. Additionally, the court is required to look at diversity over the entire planning area (here the four National Forests in Texas) rather than within an area of monoculture. See 36 C.F.R. § 219.3.[10] Therefore, under (1) the APA's deferential standard of review, (2) the deference to the Forest Service's expertise, and (3) the ambiguous NFMA statute and regulations on diversity, the court determines that, on the evidentiary record in this case, the Federal Defendants have not violated section 1604(g)(3)(B) of the NFMA or sections 219.26 and 219.27(a)(5) and (g) of the regulations. This determination with respect to diversity, however, does not address the issue of adequate monitoring under section 219.26.
PROTECTING KEY RESOURCES
Primary Legal Standards Governing Protection of Key Resources
Section 1604(g)(3)(F)(v) of the NFMA provides:
(g) Promulgation of regulations for development and revision of plans; environmental considerations; resource management guidelines; guidelines for land management plans. As soon as practicable, ... the Secretary shall ... promulgate regulations, under the principles of the Multiple-Use Sustained-Yield Act of 1960, that set out the process for the development and revision of the land management plans, and the guidelines and standards prescribed by this subsection. The regulations shall include, but not be limited to
* * * * * *
(3) specifying guidelines for land management plans developed to achieve the goals of the Program which
* * * * * *
(F) insure that clearcutting, seed tree cutting, shelterwood cutting, and other cuts designed to regenerate an even-aged stand of timber will be used as a cutting method on National Forest System lands only where
* * * * * *
(v) such cuts are carried out in a manner consistent with the protection of soil, *924 watershed, fish, wildlife, recreation, and esthetic resources, and the regeneration of the timber resource.
16 U.S.C. § 1604(g)(3)(F)(v).[11]
In interpreting the NFMA and regulations on protection of key resources, the Fifth Circuit has stated:
The directive that national forests are subject to multiple uses, including timber uses, suggests that the mix of forest resources will change according to a given use. Maintenance of a pristine environment where no species' numbers are threatened runs counter to the notion that NFMA contemplates both even- and uneven-aged timber management. Indeed, NFMA regulations anticipate the possibility of change and provide that "[r]eductions in diversity of plant and animal communities and tree species from that which would be expected in a natural forest, or from that similar to the existing diversity in the planning area, may be prescribed only where needed to meet overall multiple-use objectives." 36 C.F.R. § 219.27(g); see also 16 U.S.C. § 1604(g)(3)(C) (LRMP must ensure research and evaluation of effects of each management system to assure no "substantial and permanent impairment" of land productivity) (emphasis added); 16 U.S.C. § 1604(g)(3)(E)(i) (LRMP must provide that timber be harvested only where "soil, slope, or other watershed conditions will not be irreversibly damaged") (emphasis added). That protection means something less than preservation of the status quo but something more than eradication of species suggests that this is just the type of policy-oriented decision Congress wisely left to the discretion of the experts here, the Forest Service.
Sierra Club v. Espy, 38 F.3d at 800. The Fifth Circuit, however, warned:
The Forest Service's discretion, however, is not unbridled. The regulations implementing NFMA provide a minimum level of protection by mandating that the Forest Service manage fish and wildlife habitats to insure viable populations of species in planning areas. 36 C.F.R. § 219.19.
Id. at 800-01.
Soil
Findings of Fact
1. The Forest Service's timber harvesting practices are causing substantial and permanent soil erosion on the National Forests in Texas. Pls.' Exs. 1-3, 5, 80-83, 102, 108, 173, 175-82, 210-16, 249-50, 308-11, 318, 358, 386, 551-52, 650x (soil erosion study); Gov't Ex. 42, at 27-33; R. 120/14 to 121/5, 338/8 to 342/16, 347/10 to 348/14, 349/3 to 350/18, 358/10 to 359/8, 609/2-24. The Forest Service has failed to conserve the soil resource during its management.
2. The Forest Service's timber harvesting practices are eroding nutrient-rich soil from the forest land. R. 346/5 to 348/14. The eroded soil fills in pools and is deposited in streams and gullies. Id.
3. The erosion is carving channels or gullies from a few inches deep to several feet deep. R. 340/13-16, 348/20-21, 349/22-24; Pls.' Ex. 650x. When run-off of water and soil from a timber harvest site reaches *925 streams it changes their character by making them wider and shallower and by altering the stream's water flow. R. 355/1-5.
4. An even-aged management site, as managed by the Forest Service, produces increased run-off of water and soil for thirteen years before a return to normal run-off levels. This return to normal run-off occurs only after the nutrient-rich soil has been irreversibly displaced off the forest land. R. 346/15-21.
5. The Forest Service does not require post-harvest restoration of some areas affected by and contributing to erosion. R. 1230/14 to 1231/4.
6. In addition to eroding soil from the forest land, Forest Service management practices are substantially and permanently reducing organic and other essential matter in the forest soils.
7. The productivity of soil is dependent on the presence of nitrogen, a primary nutrient supporting the plant and animal life in the forests. R. 407/4-18, 1264/9-12.
8. Nitrogen exists in the organic matter present in soil; both nitrogen and organic matter are essential for the long term productivity of the soil. R. 407/4-18.
9. Even-aged management causes loss of nitrate (a form of nitrogen), through run-off from timber harvest sites for twenty years and longer. R. 420/10-18.
10. Soil is replenished with nutrients that are formed from the decomposition of root systems, leaf litter, coarse woody debris, and other natural matter on the forest floor. R. 464/19-25, 548/2-4, 550/10-21.
11. The biologically active portion of the forest floor consists of the following: the litter (or topmost layer, comprised of leaves and large pieces of plant matter); the duff layer (organic matter in a more advanced state of decomposition than the litter layer); and the humus layer (most commonly known as soil, which is divided for descriptive purposes into the A-horizon (topmost) and the B-horizon). The duff layer exists above the A-horizon of the soil. R. 522/9-17, 538/7-9.
12. Fungi, bacteria, insects and nematodes, duff, and humus return essential nutrients to the soil system. R. 523/9-16, 537/3-25. Organic matter in the soil is essential to forest health. R. 1074/13-19.
13. Ectomycorrhizae, a type of fungus present in the biologically active portion of soil, exist in symbiosis with trees and are essential for providing trees with phosphorous, nitrogen, and water. R. 408/13 to 409/18.
14. Studies of the effects of even-aged management on essential fungi and bacteria in soil have documented that five years after an even-aged timber harvest, only one percent of essential fungi and bacteria remain in the soil. R. 407/19 to 408/9.
15. Removal of the litter, duff, and humus layer decreases the productivity of the soil because the decomposition of natural matter no longer provides essential nutrients to the soil. R. 402/2-25, 404/1 to 405/23.
16. The sudden growth of vegetation after clearcutting does not indicate the maintenance of soil fertility but rather a significantly increased decomposition and loss of organic matter from soil. R. 1729/25 to 1730/15.
17. Even-aged management, as practiced by the Forest Service in the National Forests in Texas, results in the removal of all above-ground woody vegetation, R. 406/8-21, 550/6-21, 912/15-22.
18. There has been a significant decrease in the litter, duff, and humus layers resulting from even-aged management practices in Compartment 98 of the Sam Houston National Forest. R. 411/23 to 415/18, 536/7-21.
19. The Forest Service does not observe, measure, inventory, or monitor the organic content of soil during the course of their management activities in the National Forests in Texas. R. 936/3-14, 1083/14-24, 1197/13-15, 1199/16-20.
20. The reduction of the organic content of soil, caused by the Forest Service's even-aged management practices, is noticeable in twenty to thirty year old pine stands in the National Forests in Texas. R. 530/17-23.
21. The Forest Service's timber harvesting practices are causing substantial and permanent damage to the essential, organic matter in the soil. Once lost, the organic matter *926 does not return for hundreds of years, and, in some instances, thousands of years. R. 536/7-21.
22. Forest Service management practices are causing irreversible damage to the soil resource.
Conclusions of Law and Analysis
In even-aged timber harvesting, the Forest Service must protect the soil resource. 16 U.S.C. § 1604(g)(3)(F)(v); 36 C.F.R. § 219.27(c)(6). Management plans must "insure research on and (based on continuous monitoring and assessment in the field) evaluation of the effects of each management system to the end that it will not produce substantial and permanent impairment of the productivity of the land." 16 U.S.C. § 1604(g)(3)(C); see also § 1604(g)(2)(B) (requiring collection of "inventory data on the various renewable resources, and soil and water, including pertinent maps, graphic material, and explanatory aids"). Management plans also must "insure that timber will be harvested from National Forest System lands only where (i) soil, slope, or other watershed conditions will not be irreversibly damaged...." 16 U.S.C. § 1604(g)(3)(E)(i). In this section, Congress intended that the Forest Service "provide empirical guarantees that timber harvesting will not damage soils, water conditions, and fish habitats." WILKINSON & ANDERSON, supra at 161.
The NFMA regulations require "conservation" of soil and water. Section 219.27(a)(1) provides that "[a]ll management prescriptions shall (1) [c]onserve soil and water resources and not allow significant or permanent impairment of the productivity of the land...." Section 219.27(b)(5) provides that "[m]anagement prescriptions that involve vegetative manipulation of tree cover for any purpose shall (5) [a]void permanent impairment of site productivity and ensure conservation of soil and water resources...." "Conservation of soil and water resources involves the analysis, protection, enhancement, treatment, and evaluation of soil and water resources and their responses under management and shall be guided by instructions in official technical handbooks." 36 C.F.R. § 219.27(f).
The Forest Service is neither protecting nor conserving the key resource of soil. Forest Service management practices, which have been primarily even-aged, are causing severe erosion of soil from the forest landscape and related loss of organic matter. This soil loss is substantially and permanently impairing the productivity of the forest land and possibly timber production. The evidence at trial did not indicate which of the particular even-aged management practices was the primary cause of the severe soil erosion and derogation of the organic matter in the soil. The possible causes are numerous, including: poor site selection, excessive rutting and compaction, cutting within streamside management zones, harvesting during poor soil conditions, intensive site preparation, eradication of hardwood trees from a site, and failure to restore damaged areas. In determining whether the Forest Service is in violation of the NFMA and regulations, the focus is on whether the soil resource is ultimately being protected rather than which of the even-aged practices is causing harm to the soil. The efficacy of particular even-aged management practices is within the discretion of the Forest Service so long as the soil resource remains protected.
Whatever Forest Service planning documents prescribe with respect to protection of soil, the evidence shows that, on-the-ground, the Forest Service is not protecting the soil resource. The Forest Service has stepped outside its discretion and acted arbitrarily and capriciously by failing to conduct its management activities in a way that prevents severe soil erosion. Accordingly, the court determines that Federal Defendants have violated sections 1604(g)(3)(E)(i) and (g)(3)(F)(v) of the NFMA and sections 219.27(a)(1), (b)(5), (c)(6), and (f) of the regulations. This determination with respect to soil, however, does not address the issue of adequate monitoring of the soil resource.
Watershed
Findings of Fact
1. The court's findings of fact on the soil resource issue are incorporated herein.
2. The National Forests in Texas lie within the watersheds of five of Texas's major *927 rivers: Angelina, Neches, Trinity, San Jacinto, and Sabine. R. 854/8 to 855/9.
3. Major water bodies such as Lake Livingston, Lake Conroe, Sam Rayburn Reservoir, and Toledo Bend Reservoir share boundaries with the National Forests in Texas. R. 854/8-25, 855/1-9.
4. The Forest Service classifies the streams running through the National Forests in Texas as perennial, intermittent, and ephemeral. Gov't Ex. 15, 1987 LRMP, at IV-35, IV-87.
5. The Forest Service's management prescriptions afford streams and associated riparian areas certain protection from the effects of timber harvesting. Gov't Ex. 15, 1987 LRMP, at IV-35, IV-87; Gov't Ex. 243A, 1996 LRMP, at 158-60.
6. Under the 1987 LRMP, management prescriptions for perennial streams required a stringer (an area directly adjacent to a stream course) of one hundred feet on either side of the stream. Intermittent streams required a stringer of sixty-six feet. The purpose of stringers is to provide "`pockets' of vegetation that will remain free from silvicultural manipulation for fiber production." Gov't Ex. 15, 1987 LRMP, at IV-87 to IV-88. Under the 1996 LRMP, streamside management zones are protected from timber production. The streamside management zone consists of a fifty-foot "primary zone" and a "secondary zone" extending from the "primary zone" to a distance designated by the Forest Service on a case-by-case basis. Skidders and other logging equipment are not permitted in the "primary zone." Gov't Ex. 243A, 1996 LRMP, at 152, 158.
7. The Forest Service's standards and guidelines require it to protect stream courses by preventing logging debris from entering or remaining in stream courses during timber harvesting and by limiting the use of tracked and wheeled equipment in stringer areas. R. 1111/22-25; Gov't Ex. 15, 1987 LRMP, at IV-61, IV-89; Gov't Ex. 243A, 1996 LRMP, at 158-59.
8. On-the-ground, however, the Forest Service permits logging for timber production purposes right up to the stream banks throughout the National Forests in Texas. Pls.' Exs. 4, 17, 46, 105-06, 218, 244-46, 309, 650x, photograph nos. 47-48; R. 29/12-21, 164/6-15. For example, logging within streamside management zones has occurred on: Nebletts Creek (R. 72/1-21, 76/9 to 78/6); Little Lake Creek (R. 73/23 to 75/6); Jayhawker Creek (R. 75/9-25); Miller Creek (R. 78/8-19); Peach Creek (R. 171/12-24; Pls.' Ex. 83); and Clark's Creek (R. 179/12-17).
9. Logging operations and use of heavy equipment within stream course zones is causing erosion, compaction, and rutting. R. 608/6 to 615/9, 629/4-8, 1122/12 to 1133/13.
10. Forest Service management practices have blocked streams with tree stumps, slash, and other logging debris. Pls.' Exs. 4-6, 16, 244-45, 569, 581 (videotape), 650x; R. 83/12 to 84/2, 163/21 to 164/14, 698/14-22.
11. Logging operations within streamside management zones have substantially and permanently affected water and watersheds in the National Forests in Texas. R. 78/8-23, 628/12 to 631/14, 697/17 to 698/5; Pls.' Exs. 244-46. For example, the Forest Service has failed to protect water resources in the Angelina, Sabine, and Davy Crockett National Forests. Pls.' Ex. 650x; R. 609/19 to 610/2.
12. Forest Service management practices have caused substantial and permanent soil erosion and sediment deposit in streams and waterways. The depositing of soil and sediment in streams and waterways has degraded water quality and killed fish. R. 163/11 to 164/15, 171/12-24, 224/1-11, 609/1-24 (a 300-foot gully eroding into a riparian area), 664/10 to 665/2, 1367/5 to 1368/22; Pls.' Exs. 16, 83, 569; Gov't Ex. 15, 1987 LRMP, at J-28.
13. The Sabine Shiner and Scaly Sand Darter, which both require clear and sandy streams, are declining in population on the National Forests in Texas. R. 1367/5 to 1371/17. The Forest Service believes that siltation may be the cause. R. 1370/17-19. In response to these declines, the Forest Service advised its staff to concentrate on preventing siltation and erosion. R. 1367/24 to 1368/22; Gov't Ex. 64.
14. Cutting vegetation in a streamside zone removes the shade cover from the stream thereby raising the water temperature of the stream and changing the chemical *928 composition of the stream. Gov't Ex. 15, 1987 LRMP, J-28.
15. Water runs with increasing velocity away from an even-aged site toward surface water bodies like streams, carrying large quantities of the topsoil of the A-horizon and the nutrients contained therein. R. 120/14 to 121/5, 339/8 to 349/9, 609/2-23.
16. Substantial and permanent erosion of the soil's A-horizon into surface water in the National Forests in Texas is occurring, which changes the chemical composition of the stream. R. 121/5, 339/8 to 349/9, 609/2-23; Pls.' Exs. 175-76, 180-81.
18. Reviewing the testimony and exhibits regarding the Sam Houston, Angelina, Sabine, and Davy Crockett National Forests, the court finds that it has a representative and comprehensive picture of the Forest Service's management practices related to the protection of watersheds.
19. Forest Service management practices are causing irreversible damage to the watershed resource.
Conclusions of Law and Analysis
In harvesting timber, the Forest Service must protect and conserve the watershed resource. 16 U.S.C. § 1604(g)(2)(B), (g)(3)(C), (g)(3)(E)(i), (g)(3)(E)(iii), (g)(3)(F)(v); 36 C.F.R. § 219.27(a)(1), (a)(4), (b)(5), (c)(6), (e), (f) (as discussed in the conclusions of law section on the soil resource). "[P]rotection is provided for streams, stream-banks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperature, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat." 16 U.S.C. § 1604(g)(3)(E)(iii). "All management prescriptions shall ... [p]rotect streams, streambanks, shorelines, lakes, wetlands, and other bodies of water as provided under paragraph[] ... (e) of this section...." 36 C.F.R. § 219.27(a)(4). Paragraph (e) of section 219.27 provides:
Riparian areas. Special attention shall be given to land and vegetation for approximately 100 feet from the edges of all perennial streams, lakes, and other bodies of water. This area shall correspond to at least the recognizable area dominated by the riparian vegetation. No management practices causing detrimental changes in water temperature or chemical composition, blockages of water courses, or deposits of sediment shall be permitted within these areas which seriously and adversely affect water conditions or fish habitat. Topography, vegetation type, soil, climatic conditions, management objectives, and other factors shall be considered in determining what management practices may be performed within these areas or the constraints to be placed upon their performance.
36 C.F.R. § 219.27(e). Watershed protection involves managing the forest in a manner that: (1) prevents erosion, (2) provides for a steady flow of water run-off, (3) prevents silt and sedimentation in streams and water-ways, and (4) protects fish and wildlife. See WILKINSON & ANDERSON, supra at 201-07. "Taken together, the NFMA water quality provisions require strong measures to protect water resources and fish habitats from detrimental impacts of timber harvesting and road construction." Id. at 223.
The Forest Service is neither protecting nor conserving the key resource of watershed. Forest Service management practices, which have been primarily even-aged, are causing substantial and permanent (1) erosion within waterways, (2) deposit of soil, silt, and sedimentation in waterways, and (3) disruption of water run-off. This derogation of the watershed resource is substantially and permanently impairing the productivity of the forest land. As determined in the previous section on the soil resource, the Forest Service's timber harvesting activities are causing severe soil erosion from the forest land. This soil erosion in turn is adversely affecting the waterways that are an integral part of the watershed resource. First, excessive run-off from timber-harvest sites causes erosion and scouring of streams. The evidence at trial indicated that some of the streams in the National Forests in Texas have been eroded away or "blown-out" by excessive water run-off. Second, the erosion and displacement of soil from timber-harvest sites are filling in streams or otherwise causing severe siltation and sedimentation. Siltation and sedimentation detrimentally changes the water's temperature and chemical composition. *929 Third, once a stream is eroded away or filled in, water flow rates are adversely affected. For example, an increase in a water flow rate (1) contributes to the risk of flooding after a storm and (2) deprives the watercourse of a steady flow of water needed to support plant, fish, and other animal life.
The Forest Service's timber harvesting practices also are damaging the watershed resource by permitting (1) timber harvesting within streamside management zones and (2) blocking streams with tree stumps, slash, and other logging debris. The Forest Service's harvesting within streamside management zones is causing irreversible damage to the watershed resource.[12] First, excessive removal of vegetation around a stream exposes the soil to erosion in and surrounding the stream and its banks. Second, without vegetative cover, the stream itself is subjected to sunlight, which increases water temperature, changes the chemical composition, and destroys fish habitat. Third, timber harvesting within the streamside zone deposits tree stumps, slash, and other logging debris in the streams.[13] Blockage of the streams disrupts steady, water flow run-off.
Whatever Forest Service planning documents prescribe with respect to protection of watershed, the evidence shows that, on-the-ground, the Forest Service is not protecting or conserving the watershed resource. The Forest Service has stepped outside its discretion and acted arbitrarily and capriciously. Accordingly, the court determines that Federal Defendants have violated sections 1604(g)(3)(E)(i), (g)(3)(E)(iii), and (g)(3)(F)(v) of the NFMA and sections 219.27(a)(1), (a)(4), (b)(5), (c)(6), (e), and (f) of the regulations. This determination with respect to watershed, however, does not address the issue of adequate monitoring of the watershed resource.
Fish and Wildlife
In even-aged timber harvesting, the Forest Service must protect the fish and wildlife[14] resources. 16 U.S.C. § 1604(g)(3)(F)(v); 36 C.F.R. § 219.27(c)(6). Section 219.19 of the regulations provides:
Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area.
36 C.F.R. § 219.19. With respect to the viable populations requirement, Wilkinson and Anderson explain: "[A] sufficient number of reproductive individuals of all existing vertebrate species must be maintained in order to ensure viable populations; [and] habitat for any particular species must be distributed throughout each national forest." WILKINSON & ANDERSON, supra, at 297. With respect *930 to the "well distributed" requirement, "while plans can result in habitat conditions that reduce a species' density, the plans must allow that species ... maintain its existing distribution." Id. at 298-99 (citing FOREST SERVICE AND PANEL OF CONSULTANTS ON PROPOSED REVISION OF NFMA REGULATIONS, SUMMARY REPORT 4 (June 30-July 2, 1982)) (emphasis in original). A well distribution of species guards against "species isolation" in which the viability of species is threatened because some of the species are isolated on an island of suitable habitat. WILKINSON & ANDERSON, supra, at 299.
The Plaintiffs have not carried their burden of showing that the Forest Service has failed to protect the fish and wildlife resources. The Plaintiffs did not produce sufficient evidence at trial that the Forest Service's timber harvesting activities are threatening viable populations of fish and wildlife. Although the Forest Service's timber harvesting activities are substantially and permanently affecting the watershed resource (which includes the component of fish habitat), the Plaintiffs did not offer evidence that in fact fish populations were threatened throughout the planning area. Accordingly, in connection with the fish and wildlife resources, the court determines that Federal Defendants have not violated section 1604(g)(3)(F)(v) of the NFMA or sections 219.27(c)(6) and 219.19 of the regulations. This determination with respect to protecting fish and wildlife, however, does not address the issue of adequate inventorying and monitoring.
Recreation and Esthetic
In even-aged timber harvesting, the Forest Service must protect the recreation and esthetic resources. 16 U.S.C. § 1604(g)(3)(F)(v); 36 C.F.R. § 219.27(c)(6). "Esthetic" is a variable of "aesthetic," which means "relating to the sense of the beautiful." WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 82, 444 (1988). Section 219.21(f) of the regulations provides:
To the degree consistent with needs and demands for all major resources, a broad spectrum of forest and rangeland related outdoor recreation opportunities shall be provided for in each alternative. Planning activities to achieve this shall be in accordance with national and regional direction and procedural requirements of paragraphs (a) through (g) of this section.
* * * * * *
(f) The visual resource shall be inventoried and evaluated as an integrated part of evaluating alternatives in the forest planning process, addressing both the landscape's visual attractiveness and the public's visual expectation. Management prescriptions for definitive land areas of the forest shall include visual quality objectives.
36 C.F.R. § 219.21(f).
Plaintiffs have not carried their burden of showing that the Forest Service has failed to protect the recreation and esthetic resources. With respect to recreation, Plaintiffs offered evidence that they are unable to recreate in clearcut areas because of the dense, thorny vegetation. R. 35/6-15, 150/1-4. This evidence, however, does not indicate that Plaintiffs' recreational opportunities are substantially and permanently foreclosed by even-aged management. In fact, there was some evidence that clearcuts provide better recreational opportunities for hunters. Gov't Ex. 15, 1987 LRMP, at J-29. With respect to the esthetic resource, Plaintiffs offered evidence that clearcuts leave a scene of devastation on the forest landscape. Pls.' Exs. 1-2, 109-10, 133-35, 210-11,216-19; see also Gov't Ex. 15, 1987 LRMP, at J-29. The Plaintiffs, however, offered no evidence that the scene of devastation is permanent. With respect to section 219.21(f), the Forest Service presented evidence that it is inventorying the visual resource. R. 895/1-20. Accordingly, the court determines that Federal Defendants have not violated section 1604(g)(3)(F)(v) of the NFMA or sections 219.27(c)(6) and 219.21(f) of the regulations with respect to these resources.
Timber
In even-aged timber harvesting, the Forest Service must protect the timber resource. 16 U.S.C. § 1604(g)(3)(F)(v); 36 C.F.R. § 219.27(c)(6). The Forest Service's even-aged management practices are often designed to suppress hardwoods through the *931 use of intensive site preparation, herbicides, and prescribed burning. R. 839/19 to 840/6, 912/15-22; Gov't Ex. 2, at 1, 2-22, 27; Gov't Ex. 15, 1987 LRMP, at J-8 to J-9. Plaintiffs presented evidence that the suppression of hardwoods and the planting of non-native, pine monoculture increases the risk of insect damage to the trees. R. 447/3 to 448/11, 530/1-6, 546/8-18. Plaintiffs evidence, however, does not indicate that Forest Service management activities have actually caused substantial and permanent damage to the timber resource. Accordingly, the court determines that Federal Defendants have not violated section 1604(g)(3)(F)(v) of the NFMA or section 219.27(c)(6) of the regulations with respect to the timber resource.
It may seem anomalous that, on the one hand, the Forest Service has failed to protect the soil resource but that, on the other, Plaintiffs have not shown that the timber resource (which depends on the soil) has gone unprotected. These determinations are not in conflict. The court has determined that the Forest Service's even-aged management practices are causing severe erosion that has substantially and permanently damaged the soil resource. From this determination that the soil resource has been damaged through displacement and loss of organic matter, the court could draw a reasonable and highly probable inference that damage to the soil resource is causing damage to the timber resource, i.e., loss of stand growth. In fact, Forest Service planning documents suggest that loss of stand growth will occur on those sites in which the soil has been displaced. See, e.g., Gov't Ex. 52, Final Environmental Impact Statement: Vegetation Management in the Coastal Plain/Piedmont dated January 1989 ("1989 FEIS"), at IV-86 to IV-87 ("Growth losses of 20-50 percent have been measured in stands where 0.5-2.0 inches of topsoil had been removed before planting."). The court, however, is reticent to determine that the Forest Service is in violation of the NFMA without stronger evidence that damage to the soil resource is in fact causing loss of stand growth. On this evidentiary record, Plaintiffs have not made such a showing.
INVENTORYING AND MONITORING
Findings of Fact
1. The court hereby incorporates all previously made findings of fact.
2. The Forest Service has not been inventorying or monitoring the populations or population trends of "management indicator species" ("MIS"), except the Red-Cockaded Woodpecker, Bald Eagle, major game species, and fish. R. 488/4 to 490/13, 651/17-25, 665/24 to 667/19, 1039/18-25, 1324/23 to 1326/18; Gov't Ex. 243A, Final Environmental Impact Statement dated 1996 ("1996 FEIS"), at App. F-I to F-2.
3. To determine the effects of management activities, the Forest Service must select, inventory, and monitor the populations and population trends of MIS (as opposed to only maintaining habitat and assuming species are present). 36 C.F.R. § 219.19; R. 1383/15-22, 1389/20 to 1390/11, 1425/20 to 1426/10.
4. To maintain viable populations of existing native vertebrate species and ensure that those species are well distributed throughout the forest, a forest manager must set up a census program to determine the distribution and abundance of the particular species selected: R 325/15 to 326/4.
5. Under the 1987 LRMP, the Forest Service selected MIS. The aquatic MIS were: Largemouth Bass, Bluegill, Blackspot Shiner, Scaly Sand Darter, Longear Sunfish, Weed Shiner, and Dusky Darter. The forest land MIS were: White-tailed Deer, Bobwhite Quail, Eastern Bluebird, Six-lined Racerunner, Eastern Wild Turkey, Yellow Breasted Chat, Red-Cockaded Woodpecker, Pileated Woodpecker, and Eastern Gray Squirrel. Gov't Ex. 15, Final Environmental Impact Statement dated April 1987 ("1987 FEIS"), at D-2 to D-3; Gov't Ex. 15, 1987 LRMP, at IV-33 (incorporating the 1987 FEIS references to MIS).
6. Under the 1996 LRMP, the Forest Service has selected MIS and included them within a new category of indicators called "management indicators" ("MI"). These MI are: Red-Cockaded Woodpecker; Incised Groove Burr; Slender Gay Feather; Scarlet *932 Catchfly; Longleaf (Bluestem Series); Little Bluestem (Rayless Goldenrod Series); Navasota Ladies Tress; Yellow Fringeless Orchid; Spagnum (Beakrush Series); Nodding Nixie; Texas Bartonia; Sweetbay (Magnolia Series); Louisiana Squarehead; Shortleaf-Oak Forests; Loblolly-Oak Forests; Hardwood Forests; Southern Ladyslipper; Beech (White Oak Series); Bobwhite Quail (for Tallgrass Prairie); Little Bluestem (Indiangrass) (for Tallgrass Prairie); Neotropical Migrants (Yellow-throated Vireo, Wood Thrush, Acadian Flycatcher, and others); Neches River Rose Mallow; Bottomland Hardwood Forests; Snags; Whitetail Deer; Eastern Wild Turkey; Gray Squirrel; Fox Squirrel; Yellow Breasted Chat; Pileated Woodpecker; Largemouth Bass; Sunfish (Bluegill and Redear); Channel Catfish; Paddlefish; Scaly Sand Darter; Sabine Shiner; Dusky Darter; and Stonefly Guild. Gov't Ex. 243A, 1996 FEIS, at 103; Gov't Ex. 243A, 1996 LRMP, at 306-07.
7. The Texas Parks & Wildlife Department ("TPWD") collects population data on and monitors the Bald Eagle and major game species. The TPWD provides this data to the Forest Service in the form of a report. R. 134/5 to 138/19. The TPWD report does not enable the Forest Service to determine the effects of even-aged management on soil, watershed, fish, wildlife, recreation, esthetics, or timber. R. 139/15-22.
8. The Forest Service collects population data and tracks population trends on fish, including the aquatic MIS. R. 1346/9 to 1351/19, 1352/17-21, 1359/23 to 1363/16, 1367/5 to 1369/10, 1386/16 to 1389/16; Gov't Exs. 62, 65, 117, 122, 125, 126, 155, and 178. This inventorying and monitoring, however, is not complete or current for all areas of the National Forests in Texas. R. 653/22 to 654/15, 1351/14 to 1352/21, 1366/18-24, 1387/21 to 1389/6.
9. At trial and in its on-the-ground management, the Forest Service has taken the position that collection of population data on MIS is not "practical" because of the number of acres (approximately 670,000) the Forest Service is required to manage. R. 1314/21-25, 1325/12-14. Accordingly, the Forest Service does not collect population data on some MIS. The Forest Service instead: (1) provides habitat for the particular species, (2) determines whether there is an "occurrence" of that species, and then (3) "assumes" that the population is sufficiently distributed. R. 1312/22 to 1316/15. For example, the Forest Service does not know the population of the Pileated Woodpecker, a MIS under the 1987 and 1996 LRMP's. R. 1083/3-13.
10. The Forest Service's planning documents, however, require collection of population data to inventory and monitor MIS.
11. The Forest Service's 1987 FEIS, which is referenced and incorporated by the 1987 LRMP's MIS provisions, states:
A final important requirement of the regulations is that population trends of the management indicator species will be monitored during implementation of the Forest Plan, and relationships to habitat changes determined. This then will become the feedback mechanism that will indicate the degree to which wildlife and fish goals are being met and whether or not adjustment of the Forest Plan is necessary.
Gov't Ex. 15, 1987 FEIS, at D-4; Gov't Ex. 15, 1987 LRMP, at IV-33.
12. The Forest Service's 1992 Five Year Review states:
A method that has received much attention by natural resource managers in recent years is computer simulation or modeling to predict the effects of certain management practices on wildlife. This technique has been developed for many areas managed by the [Forest Service]. The habitat capability concept, or HABCAP, is a computer generated model that utilizes habitat (Forest) management and condition to assess the capability of the Forest (habitat) to support certain species that require a specified and readily definable Forest type and age class.
* * Important Note: HABCAP does not or should not be used to derive wildlife target projections, populations, or estimates. Many other factors effect populations that are not considered within HABCAP. HABCAP merely serves to assess the potential for a specific population based on habitat availability in an area. The value of actual population monitoring for effectiveness or validation *933 of assumptions in land management cannot be stressed enough as to its importance in the overall [management indicator] process.
The HABCAP model is based on the Forest timber stand information (CISC) which exists for all managed stands.... On [the National Forests in Texas], some HABCAP values have been used that were developed on the Chatahoochee-Oconee. This information has limited reliability for east Texas.
Gov't Ex. 19, 1992 Five Year Review, at 2-80 (emphasis in original).
13. Noting the limitations of hypothetical models of habitat capability, the Forest Service's planning for the collection of population data of MIS is carried forward in the 1996 LRMP. Gov't Ex. 243A, 1996 LRMP, at 296, 300, 306-07, G-2. The 1996 LRMP provides: "Since the 1987 Plan, direct population monitoring has been limited to endangered and threatened species and major game species, through cooperation with the Texas Parks and Wildlife Department. Models have been developed for some management indicators to evaluate habitat on certain areas of the forest; but these track capability rather than presence." Gov't Ex. 243A, 1996 FEIS, at F-1 to F-2 (emphasis supplied).
14. At least one of the models being used to assess habitat capability of MIS is HABCAP. Gov't Ex. 20, at 15-16; Gov't Ex. 21, at 37-38; Gov't Ex. 22, at 29-30. HABCAP detects trends in habitat capability but not populations or population trends. Gov't Ex. 22, at 29-30; Gov't Ex. 19, 1992 Five Year Review, at 2-80.
15. Because the Forest Service is not collecting population data for the MIS, the Forest Service cannot evaluate diversity, particularly in terms of animal and plant species.
16. The 1987 and 1996 LRMPs contemplate some site-specific collection of data for purposes of inventorying and monitoring. Gov't Ex. 15, 1987 LRMP, at IV-33; Gov't Ex. 243A, 1996 LRAMP, at 300.
17. The Forest Service is not adequately inventorying or monitoring: (1) populations of some wildlife MIS; (2) diversity in terms of its prior and present condition; and (3) its management activities as to whether it is meeting objectives and adhering to management standards and guidelines.
18. The Forest Service's failure to adequately inventory and monitor may be causing permanent and substantial damage to the productivity of the land. Without adequate inventorying and monitoring, the Forest Service cannot determine the effects of its management activities on the forest resources.
Conclusions of Law and Analysis
The foundation of public land and resource planning is "gathering data in order to establish an inventory of commodity and noncommodity resources." WILKINSON & ANDERSON, supra at 10. While a LRMP (which allocates competing forest resources) is implemented, performance is monitored. Id. Sections 1604(g)(2)(B) and (g)(3)(C) of the NFMA provide:
(g) Promulgation of regulations for development and revision of plans; environmental considerations; resource management guidelines; guidelines for land management plans. As soon as practicable, ... the Secretary shall ... promulgate regulations, under the principles of the Multiple-Use Sustained-Yield Act of 1960, that set out the process for the development and revision of the land management plans, and the guidelines and standards prescribed by this subsection. The regulations shall include, but not be limited to
* * * * * *
(2) specifying guidelines which
* * * * * *
(B) provide for obtaining inventory data on the various renewable resources, and soil and water, including pertinent maps, graphic material, and explanatory aids....
* * * * * *
(3) specifying guidelines for land management plans developed to achieve the goals of the Program which
* * * * * *
(C) insure research on and (based on continuous monitoring and assessment in the field) evaluation of the effects of each management system to the end *934 that it will not produce substantial and permanent impairment of the productivity of the land....
16 U.S.C. § 1604(g)(2)(B), (g)(3)(C).
Pursuant to the NFMA, the Secretary of Agriculture promulgated regulations that require inventorying and monitoring on the National Forests. Sections 219.12(d) and (k) of the regulations provide:
(d) Inventory data and information collection. Each Forest Supervisor shall obtain and keep current inventory data appropriate for planning and managing the resources under his or her administrative jurisdiction. The Supervisor will assure that the interdisciplinary team has access to the best available data. This may require that special inventories or studies be prepared. The interdisciplinary team shall collect, assemble, and use data, maps, graphic material, and explanatory aids, of a kind, character, and quality, and to the detail appropriate for the management decisions to be made. Data and information needs may vary as planning problems develop from identification of public issues, management concerns, and resource use and development opportunities. Data shall be stored for ready retrieval and comparison and periodically shall be evaluated for accuracy and effectiveness. The interdisciplinary team will use common data definitions and standards established by the Chief of the Forest Service to assure uniformity of information between all planning levels. As information is recorded, it shall be applied in any subsequent planning process. Information developed according to common data definitions and standards shall be used in the preparation of the 1990, and subsequent RPA Assessments and RPA Programs.
* * * * * *
(k) Monitoring and evaluation. At intervals established in the plan, implementation shall be evaluated on a sample basis to determine how well objectives have been met and how closely management standards and guidelines have been applied. Based upon this evaluation, the interdisciplinary team shall recommend to the Forest Supervisor such changes in management direction, revisions, or amendments to the forest plan as are deemed necessary. Monitoring requirements identified in the forest plan shall provide for
(1) A quantitative estimate of performance comparing outputs and services with those projected by the forest plan;
(2) Documentation of the measured prescriptions and effects, including significant changes in productivity of the land; and
(3) Documentation of costs associated with carrying out the planned management prescriptions as compared with costs estimated in the forest plan.
(4) A description of the following monitoring activities:
(i) The actions, effects, or resources to be measured, and the frequency of measurements;
(ii) Expected precision and reliability of the monitoring process; and
(iii) The time when evaluation will be reported.
(5) A determination of compliance with the following standards:
(i) Lands are adequately restocked as specified in the forest plan;[15]
(ii) Lands identified as not suited for timber production are examined at least every 10 years to determine if they have become suited; and that, if determined suited, such lands are returned to timber production;
(iii) Maximum size limits for harvest areas are evaluated to determine whether such size limits should be continued; and
(iv) Destructive insects and disease organisms do not increase to potentially damaging levels following management activities.
36 C.F.R. § 219.12(d), (k). "[F]orest plan[s] shall contain ... [m]onitoring and evaluation *935 requirements that will provide a basis for a periodic determination and evaluation of the effects of management practices." 36 C.F.R. § 219.11(d). In conducting inventorying and monitoring, the Forest Service is required to continually identify research needs:
Research needs for management of the National Forest System shall be identified during planning and periodically reviewed during evaluation of implemented plans. Particular attention should be given to research needs identified during the monitoring and evaluation described in § 219.12(k). These identified needs shall be included in formulating overall research programs and plans which involve private as well as public forest and rangelands.
36 C.F.R. § 219.28(a); see also Oregon Natural Resources Council v. Lowe, 836 F. Supp. 727, 734 (D.Or.1993) ("The regulations contemplate that [the Forest Service] would continue to conduct research and update inventories."), aff'd, 109 F.3d 521 (9th Cir.1997).
The dominant method of inventorying and monitoring the forest resources is selecting, inventorying, and monitoring MIS. The viability of fish and wildlife on the forest land is a sound indicator of not only the health of all animal and plant life in the forest but the availability of all forest resources. Sections 219.19(a)(1), (a)(2), (a)(5), and (a)(6) of the regulations provide:
Fish and wildlife habitat shall be managed to maintain cable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area.
(a) Each alternative shall establish objectives for the maintenance and improvement of habitat for management indicator species selected under paragraph (g)(1) [read as (a)(1)] of this section, to the degree consistent with overall multiple use objectives of the alternative. To meet this goal, management planning for the fish and wildlife resource shall meet the requirements set forth in paragraphs (a)(1) through (a)(7) of this section.
(1) In order to estimate the effects of each alternative on fish and wildlife populations, certain vertebrate and/or invertebrate species present in the area shall be identified and selected as management indicator species and the reasons for their selection will be stated. These species shall be selected because their population changes are believed to indicate the effects of management activities. In the selection of management indicator species, the following categories shall be represented where appropriate: [1] Endangered and threatened plant and animal species identified on State and Federal lists for the planning area; [2] species with special habitat needs that may be influenced significantly by planned management programs; [3] species commonly hunted, fished, or trapped; [4] non-game species of special interest; and [5] additional plant or animal species selected because their population changes are believed to indicate the effects of management activities on other species of selected major biological communities or on water quality. On the basis of available scientific information, the interdisciplinary team shall estimate the effects of changes in vegetation type, timber age classes, community composition, rotation age, and year-long suitability of habitat related to mobility of management indicator species. Where appropriate, measures to mitigate adverse effects shall be prescribed.
(2) Planning alternatives shall be stated and evaluated in terms of both amount and quality of habitat and of animal population trends of the management indicator species.
* * * * * *
(5) The effects of pest and fire management on fish and wildlife populations shall be considered.
(6) Population trends of the management indicator species will be monitored and relationships to habitat changes determined. This monitoring will be done in *936 cooperation with State fish and wildlife agencies, to the extent practicable.
36 C.F.R. § 219.19(a)(1), (a)(2), (a)(5), (a)(6).[16]
"[MIS] are chosen as monitoring proxies for a number of other plant and animal species." Krichbaum v. Kelley, 844 F. Supp. 1107, 1114 (W.D.Va.1994), aff'd, 61 F.3d 900 (4th Cir.1995). Section 219.19 primarily focuses on vertebrate species of fish and wildlife, but the regulations "assume that providing a full diversity of vertebrates will also maintain diversity of the invertebrates and plants." WILKINSON & ANDERSON, supra, at 273. Because MIS are merely a proxy for other animals and plants, the proper selection of MIS is vital. Wilkinson and Anderson explain:
[P]lanners must choose MIS that adequately reflect the impact of management on wildlife habitats. The regulations require that MIS "shall be selected because their population changes are believed to indicate the effects of management activities." Thus, planners must justify their MIS choices based upon the extent to which those selections will ensure that adequate habitat is maintained for all existing vertebrate species. Since the Forest Service is primarily responsible for habitat maintenance, MIS proxy species should represent all major habitat types, including water habitat.
Id. at 302-03.
Once MIS are selected, they must be inventoried and monitored. Although the Forest Service is not required to maintain a detailed list of every plant and animal species in the management area, the Forest Service is required to inventory and monitor by collecting population data of MIS. 36 C.F.R. § 219.19(a)(1), (a)(2), (a)(6); see also Swanson v. United States Forest Service, 87 F.3d 339, 344 (9th Cir.1996); Seattle Audubon Soc. v. Moseley, 80 F.3d 1401, 1404 (9th Cir.1996); Sierra Club v. United States Forest Service, 878 F. Supp. 1295, 1317 (D.S.D. 1993), aff'd, 46 F.3d 835 (8th Cir.1995); Krichbaum v. Kelley, 844 F.Supp. at 1114; Oregon Natural Resources Council v. Lowe, 836 F.Supp. at 734. Wilkinson and Anderson explain the requirement of inventorying and monitoring MIS populations:
The objectives [of maintaining and improving habitat] must be stated in terms of quantity and quality of habitat and population trends of the MIS. Population objectives must ensure a viable and well-distributed population, one that is self-sustaining throughout the national forest.... Monitoring MIS populations is essential to verify and, if necessary, modify the forest plan's assumptions about the effects of timber harvesting and other management activities on wildlife.... In order to meet the monitoring requirement, planners will need to obtain adequate inventories of wildlife populations and distribution.... [The Committee of Scientists] explained, "No plan is better than the resource inventory data that support it. Each forest plan should be based on sound, detailed inventories of soils, vegetation, water resources, wildlife, and the other resources to be managed.". [T]he NFMA regulations have significantly broadened and enhanced the role of wildlife planning in the Forest Service. The central goal is to provide sufficient habitat to sustain viable and well-distributed wildlife populations in each national forest. Realistically, this goal can only be achieved by carefully selecting and monitoring management indicator species and by collecting adequate inventory data.
WILKINSON & ANDERSON, supra, at 303-05 (internal citations omitted).
The unambiguous language of the MIS regulations requires collection of population data. 36 C.F.R. § 219.19(a)(1) ("In order to estimate the effects of each alternative on fish and wildlife populations, [MIS] ... shall be identified and selected.... These species shall be selected because their population changes are believed to indicate the effects of management activities. In the selection of management indicator species, the following categories shall be represented where appropriate: ... additional plant or animal species selected because their population changes are believed to indicate the effects of management *937 activities.") (emphasis added); 36 C.F.R. § 219.19(a)(2) ("Planning alternatives shall be stated and evaluated in terms of both amount and quality of habitat and of animal population trends of the management indicator species.") (emphasis added); 36 C.F.R. § 219.19(a)(6) ("Population trends of the management indicator species will be monitored and relationships to habitat changes determined.") (emphasis added). These regulations requiring the collection of population data are consistent with the NFMA that requires collection of inventory data. 16 U.S.C. § 1604(g)(2)(B) ("The regulations shall include ... specifying guidelines which ... provide for obtaining inventory data on the various renewable resources, and soil and water, including pertinent maps, graphic material, and explanatory aids."). "[T]he viability regulation [section 219.19] requires the agencies to look to species populations not merely to habitat for hypothetical populations." Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 1316 (W.D.Wash. 1994), aff'd sub nom. Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401.
The Forest Service interprets section 219.19 to require only habitat for MIS rather than collection of population data on the MIS.[17] In the context of analyzing whether the Forest Service must collect population data for a site-specific, environmental impact statement ("EIS") on timber sales, one court has determined that merely providing for MIS habitat is sufficient. Inland Empire Public Lands Council v. United States Forest Service, 88 F.3d 754, 760-63 (9th Cir. 1996) ("Inland Empire"). The court determined that analyzing and providing for a hypothetical habitat would satisfy section 219.19, and that failing to collect data was not arbitrary or capricious. Id. at 761. The court reasoned that the Forest Service's central assumption was reasonable, i.e., that "maintaining the acreage of habitat necessary for survival would in fact assure [sic] a species' survival." Id.
The Inland Empire decision does not support the Forest Service's interpretation. The court was reviewing the Forest Service's compliance with section 219.19 in the context of preparing a one-time, site-specific EIS for timber sales. The court was not reviewing the Forest Service's on-the-ground compliance in managing the forest over the entire planning area. Moreover, on the evidentiary record before this court, the assumption that merely providing habitat will ensure viable populations of MIS and relieve the Forest Service of collecting population data is not reasonable. Scientific analysis of the forest land requires making assumptions but the scientific method requires testing and verification of those assumptions from time to time. Continually testing assumptions upon which forest management decisions are based is exactly what Congress had in mind when it required the Forest Service to collect inventory data. See 16 U.S.C. §§ 1604(g)(2)(B), (g)(3)(C). Likewise, in promulgating regulations to determine the effects of management activities, the Secretary of Agriculture required the Forest Service to collect population data on MIS. See 36 C.F.R. § 219.19. Population data are to be collected *938 on a "sample basis" at "intervals," and these data are to be "current." 36 C.F.R. § 219.12(d), (k). Without actually collecting population data of MIS, the Forest Service cannot determine whether it is, in reality, maintaining viable populations of MIS.
The court determines that the Forest Service's interpretation of section 219.19 is plainly erroneous and inconsistent with the regulation itself and section 1604(g)(2)(B). See Robertson v. Methow Valley Citizens Council, 490 U.S. at 359, 109 S.Ct. at 1850-51. The Forest Service is correct in concluding that section 219.19 requires the maintenance of habitat to support "viable populations of existing native and desired non-native vertebrate species." But, the Forest Service ignores the clear statutory and regulatory commands to simultaneously verify, through collecting population data, that MIS are surviving in those habitats. The Forest Service must collect inventory data to evaluate its management activities not simply assume that its management activities are sound based on the provision of a hypothetical habitat. In developing inventorying and monitoring requirements, Congress, the Secretary of Agriculture, and the Committee of Scientists clearly intended that the Forest Service collect data to determine the actual effects of various forest management decisions. In fact, the Forest Service carries this intent into its own planning documents. Now that the Forest Service has failed to comply on-the-ground with the NFMA, regulations, and its 1987 and 1996 LRMPs in collecting population data on MIS, the Forest Service seeks to put a new gloss on the NFMA and related inventorying and monitoring regulations. This new gloss, however, is plainly erroneous and inconsistent with the law, and therefore this court is not bound by the Forest Service's interpretation proposed for purposes of trial.
With respect to monitoring and inventorying diversity, section 219.26 of the regulations provides:
Forest planning shall provide for diversity of plant and animal communities and tree species consistent with the overall multiple-use objectives of the planning area. Such diversity shall be considered throughout the planning process. Inventories shall include quantitative data making possible the evaluation of diversity in terms of its prior and present condition. For each planning alternative, the interdisciplinary team shall consider how diversity will be affected by various mixes of resource outputs and uses, including proposed management practices. (Refer to § 219.27(g).)
36 C.F.R. § 219.26 (emphasis added). Noting the vagueness of the term "diversity," one court has held that the MIS approach combined with a site-specific, biological evaluation before a timber sale was sufficient to satisfy the inventory requirement of section 219.26. Krichbaum v. Kelley, 844 F.Supp. at 1114. Inventorying under this interpretation for maintaining "diversity of plant and animal communities and tree species," however, may not be sufficient for two reasons. First, the MIS approach is primarily concerned with maintaining viable populations of fish and wildlife species and does not require any inventory of tree species. Second, a site-specific, biological evaluation is not sufficient to evaluate "diversity in terms of its prior and present condition." If, however, the Forest Service adequately inventories and monitors properly selected MIS, tree species, and plant species (if not adequately represented in the MIS), then the Forest Service would be acting within its discretion in evaluating diversity.
Plaintiffs argue that the Forest Service is required to conduct site-specific inventorying and monitoring before and after timber harvesting. While this may be an optimal approach to evaluating management activities, the NFMA and regulations do not explicitly require this method. The Forest Service has discretion to use this site-specific method if appropriate, but the regulations require inventorying and monitoring only at "intervals" and on a "sample basis to determine how well objectives have been met and how closely management standards and guidelines have been applied." 36 C.F.R. § 219.12(k). The Forest Service has broad discretion to determine the appropriate interval to inventory and monitor the forest resources, but that interval must be rational. See Louisiana ex rel. Guste v. Verity, 853 F.2d at 329 (noting that a court must hold the Forest Service to "certain minimal standards *939 of rationality"). A rational interval would be one that permits the Forest Service to achieve the objectives of inventorying and monitoring, i.e., protect forest resources and guide forest management planning.
In sum, the NFMA and regulations create five broad requirements for inventorying and monitoring. First, the Forest Service must inventory and monitor the forest resources (i.e., fish and wildlife, soil, watershed, recreation, esthetic, and timber). In inventorying and monitoring the forest resources, the Forest Service must evaluate the effects of management practices on the resources. Second, with respect to the fish and wildlife resources, the Forest Service must select, inventory, and monitor MIS populations. Third, the Forest Service must collect inventory data that permits evaluation of diversity in terms of its prior and present condition. Fourth; the Forest Service must inventory and monitor to determine whether it is meeting objectives and adhering to management standards and guidelines. Fifth, the Forest Service must ensure research to evaluate the effects of management practices. The Forest Service, of course, has discretion in choosing its methods of inventorying and monitoring. See Sierra Club v. Espy, 38 F.3d at 800; Sierra Club v. Robertson, 810 F. Supp. 1021, 1029 (W.D.Ark.1992) (noting that the Forest Service has considerable discretion in inventorying), aff'd, 28 F.3d 753 (8th Cir.1994). This discretion, however, must be rational and within the boundaries of the NFMA and regulations. See Sierra Club v. Espy, 38 F.3d at 800-01.
Fish and Wildlife
Plaintiffs have not carried their burden of showing that the Forest Service's selection of MIS was arbitrary or capricious under the 1987 or 1996 LRMPs. Plaintiffs argue that, under the 1987 LRMP, the Forest Service's MIS selection favored early-successional species over mid- or late-successional species, and that this selection distorted the Forest Service's evaluation of the effects of even-aged management on species population. Plaintiffs, however, did not produce sufficient evidence that the Forest Service failed to select MIS that adequately indicated the effects of management activities. The Forest Service has broad discretion in this area. See 36 C.F.R. § 219.19(a)(1) ("In the selection of management indicator species, the following categories shall be represented where appropriate.") (emphasis added).
Plaintiffs, however, have carried their burden of showing that the Forest Service has violated the MIS regulations because the Forest Service does not collect population data on MIS except for the Red-Cockaded Woodpecker, Bald Eagle, major game species, and fish.[18] The Forest Service's 1996 LRMP, which incorporates the 1996 FEIS, admits this deficiency: "Since the 1987 Plan, direct population monitoring has been limited to endangered and threatened species and major game species, through cooperation with the Texas Parks and Wildlife Department. Models have been developed for some management indicators to evaluate habitat on certain areas of the forest; but these track capability rather than presence." Gov't Ex. 243A, 1996 FEIS, at F-I to F-2 (emphasis supplied). Without sufficient MIS population data, the Forest Service cannot determine the effects of its management activities on the wildlife resource.
Whatever Forest Service planning documents prescribe with respect to collection of MIS population data and inventorying the wildlife resource, the evidence shows that on-the-ground the Forest Service is neither collecting MIS population data nor otherwise inventorying the wildlife resource. The Forest Service has stepped outside its discretion and acted arbitrarily and capriciously. Accordingly, the court determines that Federal *940 Defendants have violated sections 1604(g)(2)(B) and (g)(3)(C) of the NFMA and sections 219.11(d); 219.12(d), (k); and 219.19(a)(1), (a)(2), (a)(5), and (a)(6) of the regulations.
Soil, Watershed, Recreation, and Timber
With respect to the soil, watershed, recreation, and timber resources, Plaintiffs have not carried their burden of showing that the Forest Service has failed to inventory and monitor these resources. While Plaintiffs' evidence shows a number of limitations in the Forest Service's data and methods used to inventory and monitor these resources, the Plaintiffs' evidence is not sufficient to persuade the court that the Forest Service's actions have been arbitrary and capricious. For example, with respect to the soil resource, the Forest Service does not make the site-specific, field inspections required to obtain the information necessary to use the Universal Soil Loss Equation method of measuring erosion. R. 1270/5-17. This evidence, however, does not preclude the possibility that the Forest Service may have other methods of monitoring soil erosion. Plaintiffs have failed to show that the Forest Service is not employing other supplementary methods to monitor the soil resource. Accordingly, the court determines that, on this evidentiary record, Federal Defendants have not violated the inventorying and monitoring requirements with respect to the resources of soil, watershed, recreation, and timber.
Diversity
Because the Forest Service is not collecting population data for some MIS (i.e., wildlife), the Forest Service cannot evaluate diversity in terms of animal and plant species. Before diversity can be evaluated in terms of its prior and present condition, the Forest Service must establish baseline data for comparison purposes. Once adequate baseline data are collected, the Forest Service can again collect more data and begin to evaluate diversity, particularly with respect to the effects of management activities. The Forest Service is inventorying tree species by collecting data on stand age and species type. But, without collecting population data on the MIS, the Forest Service has no way to evaluate diversity of plant and animal species in terms of their existence and distribution. "Diversity, of course, can exist only if individual species survive." Seattle Audubon Soc'y v. Lyons, 871 F.Supp. at 1315. Therefore, by not collecting population data on the MIS (which is necessary to evaluate diversity), the Forest-Service has stepped outside its discretion and acted arbitrarily and capriciously. Accordingly, the court determines that Federal Defendants have violated section 219.26 of the regulations.
Meeting Objectives and Adhering to Standards and Guidelines
"At intervals established in the plan, implementation shall be evaluated on a sample basis to determine how well objectives[19] have been met and how closely management standards and guidelines[20] have been applied." 36 C.F.R. § 219.12(k). Because the Forest Service is not collecting population data for the wildlife MIS, the Forest Service cannot determine how well objectives have been met and how closely management standards and guidelines have been applied. For example, with respect to meeting objectives, the 1996 LRMP states the objective: "Develop habitat for threatened, endangered, or sensitive species not provided on privately owned forests and grasslands, while providing *941 populations of other species that occur within Forest and Grassland successional stages." Gov't Ex. 243A, 1996 LRMP, at 45. Because the Forest Service is not collecting sufficient MIS population data, the Forest Service is not able to determine whether it is meeting its objective of providing sufficient populations of animal and plant species. Similarly, the Forest Service will not know whether it is closely adhering to the standards and guidelines that are used to achieve the related objectives and goals, i.e., those standards and guidelines related to providing for maintaining viable populations of existing native and desired non-native vertebrate species in the planning area. Accordingly, the Federal Defendants have violated section 219.12(k) of the regulations.
Research
With respect to the Forest Service conducting research on its management activities, Plaintiffs did not carry their burden of showing that the Forest Service does not ensure research to evaluate the effects of management practices. In fact, Plaintiffs neither presented any appreciable evidence nor requested any findings of fact on this issue. Accordingly, the court determines that Federal Defendants have not violated section 1604(g)(3)(C) of the NFMA (with respect to the research requirement only) or section 219.28(a) of the regulations with respect to research.
Conclusion
The Forest Service has not adequately inventoried and monitored for wildlife MIS, diversity, and whether it is meeting objectives and adhering to standards and guidelines. The Forest Service's failure to adequately inventory and monitor may be causing permanent and substantial damage to the productivity of the land. Sufficient inventorying and monitoring of forest resources is vital to making sound, forest management decisions and ultimately protecting the forest resources from permanent impairment. Apparently, inventorying and monitoring is an area of forest management that is often neglected. In advising on the promulgation of the regulations under the NFMA, the Committee of Scientists noted that the Forest Service has a long history of failing to collect inventory data necessary to make sound decisions about forest management. Wilkinson and Anderson explain:
In 1979 the Committee of Scientists felt that current resource inventory data would be inadequate to support judgments made in NFMA plans:
Unfortunately, it does not follow that truly adequate resource data will be available to support the development of every plan. In many cases, inventory data are too fragmentary or insufficiently detailed to allow firm judgments in developing management programs of the complexity demanded by RPA/JNFMA. In other cases, data on certain organisms, resources, or management effects have simply never been gathered.
The Committee's prognosis for the first round of plans was not hopeful: "In practice, what this means is that the data base for a number of plans is likely to be marginally adequate or even shaky." Six years later [1985] it remains evident that there is not sufficient data to justify all wildlife management decisions. The plans will have to be considered with sensitivity both to the central role of good inventories in resource planning and the scope of the task, as evidenced by the Committee's words in 1979: "Even if a Federal Government-wide crash program of data acquisition and storage were to begin tomorrow, it would not provide adequate data in time to be of much value in developing the first forest plans.... [T]he Forest Service cannot remedy decades of national indifference toward basic resource data in 5 years."
WILKINSON & ANDERSON, supra, at 305 (internal citations omitted).
Plaintiffs may have been able to carry their burden on the issues of ensuring diversity and protecting the key resource of wildlife had the Forest Service collected adequate inventory data and conducted sufficient monitoring. It is nearly impossible to determine with any legal certainty whether the Forest Service is ensuring diversity and protecting the wildlife resource unless the Forest Service complies with the inventorying *942 and monitoring requirements of the NFMA. Once the Forest Service comes into compliance with the inventorying and monitoring requirements, the Forest Service and other interested parties will have a better idea of whether the Forest Service's planning decisions and activities on-the-ground are within its sound discretion and thus in compliance with the NFMA and regulations.
DECLARATORY AND INJUNCTIVE RELIEF
The federal declaratory judgment statute provides: "In a case of actual controversy within its jurisdiction ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." Declaratory Judgment Act, 28 U.S.C. § 2201(a). "The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." FED. R. Civ. P. 57. "The existence or non-existence of any right, duty, power, liability, privilege, disability, or immunity[,] or of any fact upon which such legal relations depend, or of a status, may be declared. The petitioner must have a practical interest in the declaration sought ...." FED. R. CIV. P. 57 Advisory Committee's Note. The declaratory-relief plaintiff bears the burden of proving the requirements for a declaratory judgment, i.e., existence of a dispute within federal-court subject matter jurisdiction. State of Texas v. West Publishing Co., 882 F.2d 171, 175 (5th Cir.1989). "The Declaratory Judgment Act .... gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so." Public Affairs Assocs. v. Rickover, 369 U.S. 111, 112, 82 S. Ct. 580, 581, 7 L. Ed. 2d 604 (1962). The district court's decision to grant declaratory relief is discretionary. Magnolia Marine Transp. Co. v. Laplace Towing Corp., 964 F.2d 1571, 1581 (5th Cir. 1992). A declaration is appropriate in this action and would serve the purposes of the Declaratory Judgment Act.
Accordingly, the court determines and declares: Under section 706(2)(A) of the APA, the Federal Defendants' actions or failure to act have been "arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with law," i.e., the NFMA and regulations. Specifically, Federal Defendants have neither protected the key resources of soil and watershed nor adequately inventoried and monitored for wildlife, diversity, and whether the Forest Service is meeting objectives and adhering to standards and guidelines. Federal Defendants have violated and are continuing to violate:
(1) with respect to protection of the soil resource, sections 1604(g)(3)(E)(i) and (g)(3)(F)(v) of the NFMA and sections 219.27(a)(1), (b)(5), (c)(6), and (f) of the regulations;
(2) with respect to protection of the watershed resource, sections 1604(g)(3)(E)(i), (g)(3)(E)(iii), and (g)(3)(F)(v) of the NFMA and sections 219.27(a)(1), (a)(4), (b)(5), (c)(6), (e), and (f) of the regulations;
(3) with respect to inventorying and monitoring for wildlife, sections 1604(g)(2)(B) and (g)(3)(C) of the NFMA and sections 219.11(d); 219.12(d), (k); and 219.19(a)(1), (a)(2), (a)(5), and (a)(6) of the regulations;
(4) with respect to inventorying and monitoring for diversity, section 219.26 of the regulations; and
(5) with respect to inventorying and monitoring for whether the Forest Service is meeting objectives and adhering to standards and guidelines, section 219.12(k) of the regulations.
Because Plaintiffs did not carry their burden, the court determines that the Federal Defendants are not in violation of the NFMA and regulations with respect to the issues of (1) ensuring diversity; (2) protecting the key resources of fish, wildlife, recreation (including esthetic), and timber; (3) inventorying and monitoring of fish, soil, watershed, recreation (including esthetic), and timber; and (4) adequate research.
The Administrative Procedure Act provides an injunctive remedy for "agency action unlawfully withheld or unreasonably delayed ... [or] found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...." 5 U.S.C. § 706(1), (2)(A); see National Wildlife Fed'n v. Espy, 45 F.3d 1337, 1343 (9th *943 Cir.1995); Hondros v. United States Civil Service Comm'n, 720 F.2d 278, 298 (3d Cir. 1983) (citing cases from the Tenth and District of Columbia Circuits for the proposition that "section 706(1) is a source of injunctive relief to remedy an arbitrary or capricious delay or denial of agency action"). Section 706, however, does not authorize monetary damages. Westlands Water Dis. v. Firebaugh Canal, 10 F.3d 667, 673 (9th Cir.1993). "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment." 28 U.S.C. § 2202. A declaratory judgment can be used as a predicate to further relief, including an injunction. Powell v. McCormack, 395 U.S. 486, 499, 89 S. Ct. 1944, 1952, 23 L. Ed. 2d 491 (1969).
An injunction is an equitable remedy "not a remedy which issues as of course ... or to restrain an act the injurious consequences of which are merely trifling." Weinberger v. Romero-Barcelo, 456 U.S. 305, 311, 102 S. Ct. 1798, 1803, 72 L. Ed. 2d 91 (1982) (internal quotation marks and citations omitted). The language of section 706 of the APA is mandatory: "The reviewing court shall-(1) compel agency action unlawfully withheld or unreasonably delayed ..." 5 U.S.C. § 706. In determining whether to order injunctive relief under this provision, however, a court must exercise sound discretion because the remedy is extraordinary. See Weinberger, 456 U.S. at 312, 102 S.Ct. at 1803; Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974).
The standard for a permanent injunction is essentially the same as for a preliminary injunction with the exception that the plaintiff must show actual success on the merits rather than a likelihood of success. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S. Ct. 1396, 1404 n. 12, 94 L. Ed. 2d 542 (1987). Thus, four elements are required for a permanent injunction: (1) actual success on the merits; (2) a substantial threat of irreparable injury to the plaintiff if the injunction is not granted; (3) the irreparable injury threatened to the plaintiff must outweigh the threatened injury of any injunction to the defendant; and (4) the granting of the permanent injunction must not disserve the public interest. Cherokee Pump & Equip., Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir.1994); Canal Authority of Florida v. Callaway, 489 F.2d at 572. Plaintiffs having succeeded on the merits, the court turns to the remaining elements.
The second element requires a showing of a substantial threat of irreparable injury if the injunction is not granted. In making a showing of irreparable injury, the plaintiff should also show an inadequate remedy at law. Weinberger, 456 U.S. at 312, 102 S.Ct. at 1803. The threat of irreparable injury must be imminent. Humana Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir.1986). Namely, the plaintiff must show "`there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.'" Shanks v. City of Dallas, 752 F.2d 1092, 1097 (5th Cir.1985) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 897-98, 97 L. Ed. 1303 (1953)).
Plaintiffs have shown a substantial threat of irreparable injury if the injunction is not granted. Federal Defendants' past and continuing violations of the NFMA and regulations have caused and continue to cause irreparable injury to the soil and watershed resources. The continuing violations of the inventorying and monitoring requirements are also causing irreparable injury because population baselines of wildlife that could be established are forever lost as time passes and the Forest Service fails to collect data. The present failure to collect this data forecloses any possibility that the Forest Service can (1) ensure that viable populations of vertebrate species are well distributed, (2) evaluate diversity in its prior and present condition, and (3) determine whether the Forest Service is meeting objectives and adhering to standards and guidelines. These irreparable injuries to the forest resources likewise cause irreparable injury to the Plaintiffs' enjoyment of the forest resources.[21]
*944 Timber Intervenors argue: "It cannot be assumed that any NFMA violations that have occurred in the past would be repeated under the more stringent environmental standards in the [1996 LRMP]." Timber Intervenors' Closing Argument on the NFMA Issues at 27. Certainly, past violations and the substantial and permanent damage caused by those violations is an irreparable injury that cannot be cured by an injunction. Reoccurring violations, however, can be the subject of an injunction. Whatever the Forest Service's planning documents provide, the Forest Service must, in reality, comply with the NFMA and regulations on-the-ground. In reviewing the evidence, the court found a wide gap between what the Forest Service represents in its planning documents and what it actually does on-the-ground.
For example, the 1987 LRMP required the Forest Service to collect population data on all MIS, but at trial the Forest Service admitted that it did not collect population data because it was not "practical." Although the 1996 LRMP requires the collection of population data on some "management indicators," there are no guarantees in the Plan that ensure performance on-the-ground. Compliance with the law is not forth coming because at trial the Forest Service took the position that it did not have to collect population data but only provide for habitat capability through the use of a computer model. Another example of the gap between planning and performance is that despite the Forest Service's "planning" prohibition of cutting in streamside management zones for commercial purposes, substantial photographic evidence at trial showed that these areas were routinely ignored, permitting cutting through the zone and the deposit of logging debris in the streams.
The third element requires a showing that the irreparable injury threatened to the plaintiff outweighs the threatened injury of an injunction to the defendant. The court determines that the irreparable injury to the environment and Plaintiffs far outweighs any harm caused by an injunction. Federal Defendants may lose revenue if the court enjoins the sale of timber contracts. Timber Intervenors' members may have to obtain another source of timber from private holdings or other National Forests if the court enjoins the sale of timber. These harms that an injunction may cause, however, are certainly outweighed by the permanent and grave harm to the forest land that is caused by the Forest Service's past and ongoing violations of the NFMA and regulations. The Supreme Court has stated: "Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Prod, 480 U.S. at 545, 107 S.Ct. at 1404.
The fourth element requires a showing that the granting of the permanent injunction must not disserve the public interest. The court is cognizant of the public's interest in a supply of timber from the National Forests in Texas and in the economic benefits associated with timber harvesting. The 1996 LRMP states: "The National Forests in Texas contain 5.3 percent of the approximately 11.6 million acres of timberland in East Texas; however over 20 percent of all East Texas sawtimber is produced on National Forest land.... The [National Forests in Texas have] historically supplied three percent of the timber harvested in Texas." Gov't Ex. 243A, 1996 LRMP, at 16. The public, however, also has a compelling interest in proper forest management so that the forest resources are sustained in perpetuity and not permanently damaged. Congress had this public interest in mind when it enacted the Multiple-Use Sustained-Yield Act of 1960 ("MUSYA"). MUSYA requires (1) that the National Forests be managed for the "multiple use" of various renewable resources, including "recreation, range, timber, watershed, and wildlife and fish," and (2) that the "periodic output" of such resources be maintained "in perpetuity ... without impairment of the productivity of the land." 16 U.S.C. §§ 528, 529, 531. Accordingly, the court determines that the public interest would be served by an injunction that prevents *945 ongoing substantial and permanent impairment of the forest land.
Upon determining that injunctive relief is appropriate, a court must carefully craft an injunction that reconciles any competing equities. "[I]njunctions must be narrowly drawn and precise." Brown v. Petrolite Corp., 965 F.2d 38, 51 (5th Cir.1992). The inadequate implementation of past timber sales is causing substantial and permanent damage to the soil and watershed resources (and perhaps wildlife as well for failure to monitor). The continued implementation of these past sales, however, could be modified to prevent further damage to the forest land. Under section 706(1) of the APA, the court could order mandatory injunctive relief to compel the Forest Service to immediately comply with the law. In deference to the Forest Service, however, the court will not order mandatory relief because it may unduly interfere with the Forest Service's management of the forest resources. The court is concerned that the Forest Service may not have the funds appropriated to simultaneously comply with a mandatory injunction and continue to adequately manage other forest resources.
To prevent continuing substantial and permanent damage to the forest land, however, the court determines that it is necessary to enjoin future timber harvesting until such time that the Forest Service (1) complies with the NFMA and regulations with respect to the implementation of past timber sales and (2) assures the court that any future timber harvesting will be in compliance on-the-ground. Under current management practices, further timber harvesting would only exacerbate the continuing substantial and permanent damage to the forest land. Therefore, the court hereby ENJOINS the Federal Defendants and Timber Intervenors from engaging in timber harvesting under any method (even-aged or otherwise) unless such harvesting is for insect or disease control, fire protection, or any other reason necessary to maintain the health of the forest land. This injunction is effective immediately and binds all Defendants to this action as well as those (1) identified with them in interest, (2) in privity with them, (3) subject to their control, or (4) otherwise represented by them. See Parker v. Ryan, 960 F.2d 543, 546 (5th Cir.1992). This injunction remains in effect until further order of the court. Defendants shall immediately serve actual notice of this injunction on all persons or entities engaged in timber harvesting in the National Forests in Texas. At any time, the parties may petition the court to modify the injunction.
By its findings of fact, conclusions of law, and judgment of declaratory and injunctive relief, the court is not suggesting that the Forest Service is barred from using even-aged management after the injunction is lifted. Whatever the costs of choosing even-aged management over another system of management, Congress has determined that even-aged management may be used by the Forest Service under certain circumstances outlined in the NFMA. Additionally, the court is not suggesting that the Defendants cease any particular forest management practice or adopt another in its place. In most circumstances, the selection of particular forest management practices under the NFMA and regulations is left to the Forest Service's rational and informed discretion. Within this discretion, however, the Forest Service must ultimately comply with the NFMA and regulations.
As noted in Sierra Club v. Espy, 38 F.3d at 800, the National Forests are subject to multiple uses, and the NFMA does not require the maintenance of the status quo or a pristine environment. The National Forests are managed for obtaining a sustained yield of various resources, and of course the mix of forest resources changes, requiring at times trading one resource for another in a particular area of the forest. In making these trade-offs, however, the Forest Service cannot substantially and permanently damage the productivity of the forest land. Regrettably, the evidence at trial showed that past and continuing on-the-ground management practices of implementing timber sales has substantially and permanently damaged the soil and watershed resources.
The Forest Service has a difficult task managing the forest lands in a way that sustains a yield of all key forest resources. Compliance with the NFMA and regulations is not easy, but it is necessary to ensure a *946 sustained yield of forest resources in perpetuity for the public good. The Forest Service indicated at trial that it is operating under budgetary constraints and "very shorthanded." R. 805/21, 1039/18-25, 1382/11-16. But, with sufficient agency resources, the court is confident that the Forest Service can bring its on-the-ground management into compliance. At trial, the court observed that the Forest Service professionals who testified were competent and knowledgeable about forest management. The court's determination that the Forest Service has violated the NFMA and regulations should not necessarily reflect on the performance of any particular individual within the Forest Service.
POST JUDGMENT MATTERS
The court will sign a judgment consistent with this opinion and order. The court instructs the Clerk of Court to enter the judgment on the docket on August 14, 1997. By the court's calculation, the parties' post-judgment motions are due August 28, 1997. Along with any post-judgment motions the parties may wish to file, the parties are hereby ORDERED to submit briefing on the following issues: (1) scope of the current injunction and any necessary modification thereof and (2) appointment of a master under FED.R.CIV.P. 53 or expert under FED. R. EVID. 706 (including the issues of shifting costs to Defendants). The court anticipates that a master or expert may be necessary once the Federal Defendants move to demonstrate compliance with the law and to lift the injunction. The court anticipates holding a hearing once the parties submit post-judgment briefing to the court.
Under Rule 54(b), the court expressly determines that there is no just reason to delay an entry of final judgment as to the claims determined in this opinion and order.
NOTES
[1] The procedural history of this case is contained in prior opinions. See Sierra Club v. Glickman, 67 F.3d 90, 92-93 (5th Cir.1995) (Red-Cockaded Woodpecker); Sierra Club v. Espy, 38 F.3d 792 (5th Cir.1994) (even-aged logging); Sierra Club v. Lyng, 694 F. Supp. 1260, 1263-64, 1273-75 (E.D.Tex.1988) (Southern Pine Beetle), aff'd in part and vacated in part sub. nom. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.1991) (addressing Red-Cockaded Woodpecker issues). This court declined to revisit the Southern Pine Beetle issue. Court's Order of Sept. 9, 1994.
[2] A prior opinion in this case explains the timber harvesting methods:
Broadly stated, there are two ways to manage a forest's timber resources. The first method is even-aged management. See 36 C.F.R. § 219.3. Even-aged management includes clearcutting, where all the trees are cut down; seed tree cutting, where most of the trees are cut down, leaving only a few to naturally seed the cut area; and shelterwood cutting, where about double the number of trees are left standing as would be under the seed tree method. Even under the least intrusive even-aged management technique, shelterwood cutting, only about sixteen trees per acre remain after a cut. Moreover, under seed tree cutting, the older trees left to naturally seed the cut area are later removed. Even-aged management results in stands of trees that are essentially the same age....
The second method of timber resource management is uneven-aged management, also known as selection management. See 36 C.F.R. § 219.3. Uneven-aged management encompasses both single tree selection and group selection. Group selection involves cutting small patches of trees, while single tree selection involves selecting particular trees for cutting. Uneven-aged management maintains a continuous high-forest cover, and the stands are characterized by a number of differently aged trees.
Sierra Club v. Espy, 38 F.3d at 795-96.
[3] NEPA requires federal agencies to prepare a detailed Environmental Impact Statement for inclusion in major federal actions significantly affecting the quality of the human environment. 42 U.S.C. § 4332(C). NEPA is incorporated into the NFMA by 16 U.S.C. § 1604(g)(1).
[4] For a detailed discussion of these planning documents, see Sierra Club v. Espy, 38 F.3d at 795-96.
[5] Creating a split between the circuits, the Sixth Circuit has determined that "[t]he National Forest Management Act thus contemplates that even-aged management techniques will be used only in exceptional circumstances." Sierra Club v. Thomas, 105 F.3d 248, 251 (6th Cir.1997). Reviewing a Land Resource Management Plan ("LRMP") that required that eighty percent of all logging would be even-aged, the Sixth Circuit determined that the Forest Service violated section 1604(g)(3)(F)(v) of the NFMA by failing to protect key resources. Id. at 249, 252. The Sixth Circuit explained political and economic factors that cause the loss of key resources in the National Forests despite the statutory requirements of the NFMA. Id. 251-52.
[6] Defendants agree that no statute or regulation provides for an administrative review of agency actions after the sale, and that exhaustion of administrative remedies does not apply to an on-the-ground review. See Federal Defs.' Br. on Exhaustion of Administrative Remedies at 4, 6-7; Timber Intervenors' Br. on Exhaustion of Administrative Remedies at 4 n. 2.
[7] The Forest Service unveiled a new LRMP on March 28, 1996. See Gov't Ex. 243A, Revised Land and Resource Management Plan dated 1996 ("1996 LRMP"). The NFMA provides that forest plans should be revised or replaced at least every fifteen years. 16 U.S.C. § 1604(f)(5). Once a revised forest plan is issued, new timber "contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with" the revised plan. 16 U.S.C. § 1604(i).
[8] There are three broad exceptions to the mootness doctrine: collateral consequences, wrong capable of repetition yet evading review, and voluntary cessation. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION 128-39 (2d ed.1994). Under the "collateral consequences" exception, a case is not moot if an injury remains that could be redressed by a favorable court decision. Id. at 128. Under the "wrong capable of repetition yet evading review" exception, a case is not moot if the challenged action was too short in duration to be fully litigated while in existence and if there is a reasonable expectation that the plaintiff will again be subject to the same action in the future. Id. at 131-32. Under the "voluntary cessation" exception, a case is not moot if there is a reasonable expectation that the plaintiff again will be subject to the unlawful conduct. Id. at 136. Even assuming that the issues before the court are not "live" (which they are), the court would continue to have jurisdiction because the Forest Service could continuously amend its 1996 LRMP to evade review. Furthermore, a Forest Service planning document or subsequent amendment may not necessarily ensure on-the-ground compliance with the NFMA and regulations.
[9] "Alpha diversity" is diversity within a stand while "beta diversity" is diversity between stands. Sierra Club v. Robertson, 784 F. Supp. 593, 611 (W.D.Ark.1991), aff'd, 28 F.3d 753 (8th Cir.1994).
[10] There is some tension between sections 219.3 and 219.19. Section 219.3 requires an evaluation of "diversity" in terms of the entire planning area (here the four National Forests in Texas). But, section 219.19 requires: "Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.... [A] viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area." 36 C.F.R. § 219.19 (emphasis added). The regulatory history of section 219.19 indicates that the Forest Service must maintain the existing species distribution throughout each National Forest. Wilkinson and Anderson explain: "[W]hile plans can result in habitat conditions that reduce a species' density, the plans must allow that species ... maintain its existing distribution." WILKINSON & ANDERSON, supra at 298-99 (citing FOREST SERVICE AND PANEL OF CONSULTANTS ON PROPOSED REVISION OF NFMA REGULATIONS, SUMMARY REPORT 4 (June 30-July 2, 1982)) (emphasis in original). Thus, it may be permissible for the Forest Service to displace species from certain monoculture areas into other locations in the "planning area" under the definition of "diversity" in section 219.3. But, in doing so, the Forest Service may be afoul of section 219.19's requirement that the species be "well distributed in the planning area."
[11] Section 219.27(c)(6) of the regulations practically mirrors the statutory requirement:
The minimum specific management requirements to be met in accomplishing goals and objectives for the National Forest System are set forth in this section. These requirements guide the development, analysis, approval, implementation, monitoring and evaluation of forest plans.
* * * * * *
(c) Silviculural practices. The following management requirements apply to timber harvest and cultural treatments:
* * * * * *
(6) Timber harvest cuts designed to regenerate an even-aged stand of timber shall be carried out in a manner consistent with the protection of soil, watershed, fish and wildlife, recreation, and aesthetic resources, and the regeneration of the timber resource.
36 C.F.R. § 219.27(c)(6).
[12] Under the Forest Service's interpretation, "special attention" in section 219.27(e) does not prohibit the Forest Service from cutting within a 100 feet of a perennial stream so long as the cutting is for a purpose other than timber production, i.e., wildlife management. The Forest Service's interpretation of its own regulations will control if that interpretation is not "`plainly erroneous or inconsistent with the regulations.'" Robertson, 490 U.S. at 359, 109 S.Ct. at 1850-51 (quoting Bowles, 325 U.S. at 414, 65 S.Ct. at 1217). The court determines that the Forest Service's interpretation is not plainly erroneous or inconsistent with the regulations if in fact that is its practice on-the-ground. The evidence at trial, however, demonstrated that, without a nontimber production reason, the Forest Service was cutting trees within streamside management zones or, in some cases, totally removing the streamside management zone by removing every tree surrounding a stream.
[13] The Forest Service presented some evidence that it monitored the logging operation on Compartment 98 of the Sam Houston National Forest with respect to discarding logging debris in streams. The overwhelming weight of the evidence at trial, however, was that logging debris was routinely left in streams throughout the National Forests in Texas.
[14] Although "wildlife" could include all members of the animal kingdom living on the forest land, the NFMA and regulations focus primarily on vertebrate game and nongame species. See WILKINSON & ANDERSON, supra, at 273 (citing 36 C.F.R. § 219.19).
[15] "When trees are cut to achieve timber production objectives, the cuttings shall be made in such a way as to assure that the technology and knowledge exists to adequately restock the lands within 5 years after final harvest. Research and experience shall be the basis for determining whether the harvest and regeneration practices planned can be expected to result in adequate restocking." 36 C.F.R. § 219.27(c)(3).
[16] "All management prescriptions shall ... [p]rovide for adequate fish and wildlife habitat to maintain viable populations of existing native vertebrate species and provide that habitat for species chosen under § 219.19 is maintained and improved to the degree consistent with multiple-use objectives established in the plan...." 36 C.F.R. § 219.27(a)(6).
[17] Federal Defendants offer the following interpretation of section 219.19:
The substance of the duty in 219.19 goes to management of habitat to support viable populations vis-a-vis direct management of species populations themselves. At bottom, it requires providing an amount and distribution of habitat adequate to support the continued persistence of vertebrate species in the planning area, given the life history of the species, the current amount and distribution of its habitat, the amount and distribution of species' ranges within the planning area, and other reasonably foreseeable protective measures.
* * * * * *
Thus, while the regulation calls for a certain amount of monitoring to be undertaken in assessing the status of species on a forest, 36 C.F.R. § 219.19(a)(6), individual species-specific assessments are not required. Rather, consistent with the principles of ecosystem management, the Forest Service may make use of assessments within one or more of the following categories: (1) species with habitat needs that are roughly the same; (2) a group of species generally thought to perform the same or similar ecosystem functions; and/or (3) the continued integrity and function of ecosystem(s) in which a species is found.
Federal Defs.' Proposed Findings of Fact and Conclusions of Law at 95-96. In effect, the Forest Service believes that it can satisfy the requirements of 219.19 in three ways: (1) collect population data on MIS; (2) collect data on a community of various species, or (3) merely provide habitat for the MIS on the assumption that viable populations of MIS will survive.
[18] Although the Forest Service's inventorying and monitoring of the fish MIS is not complete or current, the Forest Service is in the process of collecting more data. The Forest Service has set goals for collecting data on the fish MIS for all of the four National Forests in Texas, including all the streams. Therefore, on the evidentiary record before the court, the Forest Service appears to be making progress on-the-ground toward maintaining current data on the fish MIS populations. Accordingly, the Forest Service's actions are not arbitrary and capricious, and thus the Federal Defendants have not violated the inventorying and monitoring requirements with respect to the fish resource.
[19] The regulations define "objective" as: "A concise, time-specific statement of measurable planned results that respond to pre-established goals. An objective forms the basis for further planning to define the precise steps to be taken and the resources to be used in achieving identified goals." 36 C.F.R. § 219.3. The regulations define "goal" as: "A concise statement that describes a desired condition to be achieved sometime in the future. It is normally expressed in broad, general terms and is timeless in that it has no specific date by which it is to be completed. Goal statements form the principal basis from which objectives are developed." Id.
[20] The 1987 LRMP provides an explanation of "standards and guidelines":
Management requirements to achieve goals and objectives are referred to as standards and guidelines (S & G's). These state the bounds of constraints within which management practices will be performed. Forest-wide standards and guidelines apply to all management areas and possibly to all alternatives considered. Some standards and guidelines apply only to a particular management area.
Gov't Ex. 15, 1987 LRMP, at IV-31.
[21] Plaintiffs do not have an adequate remedy at law. The APA does not provide for recovery of monetary damages, and the Forest Service's continuing noncompliance with the NFMA and regulations is causing irreparable injury to the forest land. This irreparable injury to the environment is an injury for which the law does not provide an adequate remedy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913263/ | 981 A.2d 1197 (2009)
Berhanu MOLLA, Appellant,
v.
Donna SANDERS, Appellee.
No. 07-CV-294.
District of Columbia Court of Appeals.
Argued June 27, 2008.
Decided September 17, 2009.
*1198 Timothy P. Cole, Montague, TX, for appellant.
Hughie D. Hunt, College Park, MD, for appellee.
Before RUIZ, GLICKMAN, and THOMPSON, Associate Judges.
RUIZ, Associate Judge:
This is the second case in a series of actions appellant (landlord) has brought against appellee (tenant) in an effort to gain possession of the property that appellant purchased at a foreclosure sale. We reverse and remand for further proceedings because the trial court granted summary judgment under the misapprehension that the decision in the first case was dispositive of the issues raised in the action that gives rise to this appeal.
I.
In the first action, appellant sued appellee and the prior owner of the property, Sinclair Skinner, under a theory of "wrongful detainer." See Molla v. Skinner, No. 04-LTB-19104. In that case, Judge Melvin R. Wright ruled in favor of appellee, concluding that she had the right to continue occupying the premises pursuant to an existing lease between her and Skinner, despite the subsequent conveyance of the property to appellant. Judge Wright found that "the evidence establishes [appellee's] legal right to occupy the property pursuant to the terms agreed to by [appellee] and the prior owner...."[1] Appellant did not appeal from the judgment in favor of appellee's continued tenancy.
About six months after this ruling, on June 16, 2006, appellant gave notice to appellee that he was increasing her rent from $450 (the amount due under the lease with Skinner), to $1,600. On August 17, 2006, appellant gave appellee "notice to cure or quit," telling her that "you have been violating the obligation of your tenancy.... Please be advised that your monthly rent is One Thousand Six Hundred *1199... Dollars.... Your violation consists of not paying your August rent."
Appellant then filed the underlying action, this time for possession for nonpayment of rent.[2] Both parties moved for summary judgment. Appellant prayed for judgment for possession and a money judgment for unpaid rent in the amount of $1,600 per month from August 2006 through February 2007. Appellee opposed, and in her motion for summary judgment, claimed that appellant's action was barred by res judicata or collateral estoppel because the (unappealed) order that Judge Wright had issued validated the existing lease including, by implication, the amount of monthly rent due ($450).
The court, Judge Motley, concluded that appellant's claims were barred because Judge Wright had already ruled on the matter:
[Judge Wright] decided that the lease was in effect. You want me to change his ruling. That's what you want me to do.... You might have said he was wrong. You might want to appeal it or have him change his mind. But I cannot change what I think he did.... My ruling is based on the fact that Judge Wright has decided this issue.
Judge Motley rejected appellant's argument that the continuing enforceability of the lease terms as opposed to the existence of a tenancy that survived transfer of the property was not a necessary finding in Judge Wright's ruling.[3] He therefore granted partial summary judgment to appellee on the question of the monthly rent due.[4]
II.
We review the grant of summary judgment de novo. See, e.g., Osei-Kuffnor v. Argana, 618 A.2d 712 (D.C.1993). We must affirm the judgment "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." Super. Ct. Civ. R. 56(c). "In reviewing a grant of summary judgment, it is our function to determine whether, viewing the evidence in a light most favorable to the party opposing the motion ... that evidence gives rise to a genuine factual dispute. If *1200 so, summary judgment must be reversed, and trial held on the disputed issues." Leichtman v. Koons, 527 A.2d 745, 746-47 (D.C.1987).
We agree with appellant that Judge Wright's ruling in the prior action is not dispositive of the issues relevant to the action for possession that was before Judge Motley. While there is no statutory action for "wrongful detainer" in the District of Columbia, cf. Legacy Funding LLC v. Cohn, 396 Md. 511, 914 A.2d 760, 766 (2007) ("Although there is little guidance in the caselaw regarding the elements of a non-statutory wrongful detainer action, we think it is at least implicit that, to establish the basis of such a claim ... the claimant must show that (1) it was lawfully entitled to possession, (2) it demanded possession following its entitlement to do so, and (3) the possession was wrongfully denied."), we recognize that the action filed by appellant in the first litigation was effectively one for ejectment, pursuant to D.C.Code § 16-1103. To prove a case for ejectment, "it is sufficient to entitle the plaintiff to relief to show that he is entitled, as against the defendant, to the immediate possession of the premises claimed, and that the defendant is: (1) in possession of the premises, and is holding adversely to plaintiff...." Id. § 16-1104(a) (2001). As appellee's claim of right is that of tenancy with the prior owner and since she was in actual possession of the property the lease was relevant to whether appellant was entitled to immediate possession because appellee was adversely in possession, instead of a lawful occupant. See D.C.Code § 16-1103 (2001) (referring to proof that defendant in an ejectment action is "wrongfully in possession" or "wrongfully exercising acts of ownership"). Thus, Judge Wright's ruling in favor of appellee, recognizing that she had a valid lease with Skinner, was necessary to the holding that appellant had failed to prove his case for ejectment, because appellee was not holding the property adversely but pursuant to a claim of right.[5] Judge Wright did not, however, need to decide in order to dismiss the complaint for ejectment that the lease terms would continue to be effective regardless of the conveyance of the property, a conclusion that, as we now explain, would have been clearly contrary to law. See, e.g., Cook v. United States, 828 A.2d 194, 196 n. 2 (D.C.2003) (in the context of bench trial, trial judges are presumed to know the law and apply it properly).
When title to real property conveys by deed, any unrecorded instrument concerning the property is ineffective against a subsequent bona-fide purchaser. See D.C.Code § 42-401 (2001). Thus, we have held, a bona-fide purchaser[6] is not bound by an unrecorded lease on the property. *1201 See Clay Props., Inc. v. Washington Post Co., 604 A.2d 890, 894 (D.C.1992) (en banc) (unrecorded lease ineffective against a bona-fide purchaser who acquired the property in a foreclosure sale) (citing former codification, D.C.Code § 45-801 (1990 Supp.)). But the law affords protection to tenants who had enjoyed possession of the property pursuant to a valid lease with a prior owner, although they may no longer have a lawful claim to continue to be in possession pursuant to a lease the law will not enforce. Such tenants do not lose their tenancy, but usually stand as tenants-at-will in relation to the new owner:
An estate at will is one held by the joint will of lessor and lessee, and which may be terminated at any time, as herein elsewhere provided, by either party; and such estate shall not exist or be created except by express contract; provided, however, that in case of a sale of real estate under mortgage or deed of trust or execution, and a conveyance thereof to the purchaser, the grantor in such mortgage or deed of trust, execution defendant, or those in possession claiming under him, shall be held and construed to be tenants at will, except in the case of a tenant holding under an unexpired lease for years, in writing, antedating the mortgage or deed of trust.
D.C.Code § 42-522 (2001) (emphasis added); cf. Simpson v. Jack Spicer Real Estate, Inc., 396 A.2d 212, 213-14 (D.C. 1978) (per curiam) (noting that a former owner who continues to occupy the house after foreclosure is a holdover tenant, "one who holds or possesses lands by any kind of right or title ... and [not] ... one who stands in a contractual relationship with his landlord."); Surratt v. Real Estate Exchange, 76 A.2d 587, 587 (D.C.1950) (noting that under the 1940 codification of the statute, "when the deed of trust was foreclosed, [former owners] automatically became `tenants at will' of ... the purchaser....").
To determine that appellee continued to have a right to possess the property after it conveyed to appellant, Judge Wright had to have found that appellee had a valid tenancy with the prior owner that allowed appellee to continue as a tenant pursuant to D.C.Code § 42-522. This was the basis for Judge Wright's dismissal of appellant's claim for ejectment, grounded on appellee's alleged unlawful adverse possession of the property. Judge Wright's ruling signified that appellant could not evict appellee through an action for ejectment, but must follow the eviction procedure set forth in the Rental Housing Act, D.C.Code § 42-3505.01 (2009 Supp.). See Adm'r of Veterans Affairs v. Valentine, 490 A.2d 1165, 1170 (D.C.1985) (per curiam) (holding that the Rental Housing Act, then codified in relevant part at D.C.Code § 45-1561 (1981), continues to apply to tenants who remain after conveyance by foreclosure because there is no "reason why a party who has come into ownership as a result of a mortgage default has any different relationship with previous tenants than do other owners."); see also Merriweather v. District of Columbia Bldg. Corp., 494 A.2d 1276, 1279 (D.C.1985) (applying Valentine, "since appellants are tenants of property, treated before and subsequent to the foreclosure as rental property, they are entitled to all the eviction protections... of the Rental Housing Regulations").
Armed with Judge Wright's finding that appellee was his tenant, appellant tried again to achieve his objective of gaining possession of the property by filing an action under the Rental Housing Act. When appellant brought suit to evict appellee for non-payment of the increased rent he claimed was due, the trial court did not make findings on the issue relevant to the action for non-payment of rent, i.e., the *1202 rent due, because the court was persuaded that the amount of the applicable rent had already been decided by Judge Wright in the previous action for ejectment. But, as we explain, Judge Wright did not have to find that appellant was bound by all the terms of the lease between appellee and the previous owner. Rather, all Judge Wright needed to doand did dowas to recognize the validity of that lease to the extent it permitted appellee to resist ejectment and continue her tenancy with the new owner, albeit one on an at-will basis, as provided in D.C.Code § 42-522.[7] Res judicata bars relitigation of the same claim between the same parties, see, e.g., Carr v. Rose, 701 A.2d 1065, 1070 (D.C.1997), but an action for ejectment is not the same as a complaint for possession under the Rental Housing Act.[8] Nor does collateral estoppel (or issue preclusion) apply to bar litigation in this case of the amount of rent due to appellant because a determination of the rent obligation was not "essential" to the first judgment. Pipher v. Odell, 672 A.2d 1092, 1095 (D.C.1996) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982)) (additional citation omitted).[9]
For the foregoing reasons, we conclude that the trial court erred in relying upon the ruling in the prior action for ejectment (where the only dispositive issue was whether there was a tenancy that survived transfer of the property) as having decided whether appellant was entitled to relief in this casean action for eviction for nonpayment of rent. The relevant issues in this case are different, and include determining what kind of tenancy appellee has under D.C.Code § 42-522, see note 7, supra, and whether any defenses apply to the increased rent that appellee claims is due.[10] Inasmuch as the judgment of the trial court was based on a legal misapprehension that appellant's lawsuit was precluded by the decision in a prior action, it must be reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
NOTES
[1] Judge Wright's order also stated, "The lease agreement calls for rent to be paid at the rate of $450 per month with no utilities payments required by [appellee]. The lease runs from June 2002 through June 2007."
[2] Both counsel advised the court during oral argument that there are related cases, one in Superior Court concerning the renewal of the lease, and another before the Rental Housing Commission challenging the rent increase under the rent control law.
[3] Judge Motley explained:
That's what, because if I upset his ruling as you suggest, not recognizing the contract because you said he didn't recognize the contract and it wasn't necessarily [sic] for his ruling, that's not true. By its own terms, it's necessary for his ruling..... You said that's just dicta; he's just talking there. He's not talking there. That's not something unnecessary for the holding. That is his holding. I cannot say it's dicta. I can't say it. It's not dicta.
[4] Although the trial court granted partial summary judgment to appellee on the continuing applicability of the lease terms, it ultimately ruled for appellant in granting judgment for possession because appellee had failed to pay the rent called for in the lease. The court found that $421.33 was due to appellant under the lease and ordered a money judgment in that amount. According to representations by both parties at oral argument, appellee subsequently satisfied the money judgment and the court stayed execution of the judgment for possession. See Trans-Lux Radio City Corp. v. Serv. Parking Corp., 54 A.2d 144, 146 (D.C.1947) ("[A] court of law or equity may relieve a tenant from forfeiture of his lease for nonpayment of rent by permitting him before or after judgment, so long as he is in possession, i.e., before `execution is executed,' to pay the rent due, with interest and costs.").
[5] Appellee's counsel stated during oral argument that it was the landlord who had asked the court to admit the lease into evidence in the first lawsuit. According to counsel, appellant had sought to prove that the lease was fraudulent, which would have undermined appellee's claim that she had a lawful claim to possess the property pursuant to a valid lease.
The lease appears to be a standard rental contract, executed by appellee and the prior owner, on June 23, 2002. Judge Motley wondered whether the term of the lease five years with an option to renew for another five years was "unusual." When asked by Judge Motley whether there had been collusion between appellee and the prior owner by entering into such a lease just before appellant bought the property, appellant's counsel replied that he had "no evidence of it." By finding in favor of appellee, Judge Motley rejected the challenge to the authenticity and bona fides of the lease.
[6] A bona-fide purchaser is one without "actual, constructive or inquiry" notice of the unrecorded instrument. Clay, 604 A.2d at 895.
[7] We note that under the statute, the tenancy becomes "at will, except in the case of a tenant holding under an expired lease for years, in writing, antedating the mortgage or deed of trust." D.C.Code § 42-522 (2001). As noted, appellant's 2002 lease was for a term of five years, renewable for another five years, see note 5, supra, but the renewal term apparently is in dispute. See note 2, supra.
[8] Res judicata also bars claims that could have been brought with the previous claim. See Carr, 701 A.2d at 1070. Before Judge Wright's ruling declaring that appellee had a valid lease with the prior owner, and consequently, a continuing tenancy, the current action for eviction under the Rental Housing Act would not have been appropriate.
[9] As noted, in the ejectment action, appellant had contested the existence of a valid lease, not any specific term of the lease. See note 5, supra.
[10] Appellee raised two points in opposition to appellant's "Statement of Undisputed Facts":
1. Defendant disputes that the market rate of rent would be 1600.00 per month.
2. Defendant disputes whether Plaintiff is exempt from the rent control act. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2380768/ | 40 F. Supp. 2d 943 (1999)
FEDERAL EXPRESS CORPORATION, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant.
No. CV 96-3151 DA.
United States District Court, W.D. Tennessee.
March 10, 1999.
*944 *945 Dwayne S. Byrd, R. Larry Brown, Lester A. Bishop, Jr., Federal Express Corporation, Legal Department, Memphis, TN, for Federal Express Corporation, plaintiff.
Joe A. Dycus, U.S. Attorney's Office, Memphis, TN, for United States Postal Service, defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
DONALD, District Judge.
Before this court is Defendant's, United States Postal Service, Rule 12(b)(6) motion to dismiss Plaintiff's, Federal Express Corporation, complaint for failure to state a claim upon which relief can be granted. Plaintiff alleges that Defendant violated Section 43 of the Lanham Act, 15 U.S.C. §§ 1051-1127, by disseminating false and misleading advertising concerning the characteristics of its Priority Mail and Global Priority Mail services. More specifically, Plaintiff alleges that Defendant violated the 15 U.S.C. § 1125(a) by 1) *946 falsely representing its delivery service as an express service comparable to that offered by the Plaintiff, 2) misrepresenting the price of FedEx 2Day, an express service offered by the Plaintiff, and 3) falsely advertising itself as a private commercial entity which offers delivery service "around the world." Plaintiff avers that consumers have been and are likely to be misled by these false advertisements. Plaintiff further avers that these false advertisements have caused irreparable harm to its business, reputation and goodwill. To remedy these alleged harms, Plaintiff requests that 1) Defendant compensate Plaintiff for all profits obtained by the Defendant through the misleading advertising campaign; 2) Defendant pay Plaintiff treble damages for all harm suffered on account of the misleading advertising; 3) Defendant reimburse Plaintiff for all costs incurred as a result of the misleading advertising, including corrective advertising costs; and 4) Defendant deliver to the Plaintiff all items bearing the misleading representations. Plaintiff also requests this court to 1) issue preliminary and permanent injunctions prohibiting Defendant from continuing to use these misleading advertisements, and 2) direct Defendant to file a report detailing all measures taken to comply with the injunction within thirty days of the court's injunction.
Defendant contends that Plaintiff's complaint fails to state a claim and should be dismissed pursuant to Rule 12(b)(6). In support of this contention, Defendant argues that 1) Plaintiff's complaint fails to plead the facts underlying its allegations of a Lanham Act violation with sufficient particularity, 2) the alleged statements of misrepresentation are not material and therefore not actionable under the Lanham Act, 3) Defendant's representation of itself as a "company" which "delivers around the world" was a statement of puffery and therefore not actionable under the Lanham Act, and 4) Defendant's comparison between its delivery services and those of Plaintiff is not actionable under the Lanham Act because the statements were true and Defendant did not have a duty to disclose all the differences between its delivery service and that of Plaintiff.
For the following reasons, the court denies Defendant's Rule 12(b)(6) motion to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted.
I. FACTS
Plaintiff is a private corporation organized under the laws of Delaware and having its principal place of business in Memphis, Tennessee. (Pl.'s Compl. ¶ 1). Its principal business is the door-to-door express delivery of documents, packages and freight throughout the United States and the world via a complex, integrated air ground transportation system. Currently, Plaintiff delivers an average daily volume of approximately 2,500,000 packages per day. (Pl.'s Compl. ¶ 6). Plaintiff's delivery business features door-to-door delivery, time and day delivery commitments, package status tracking, a money-back guarantee for on-time delivery and a second guarantee for package status tracking, evening package drop-off facilities across the country, a network of over 500 airplanes owned or operated by Plaintiff, over 37,000 land vehicles such as trucks and vans, and over 40,000 retail locations for customer access and other feature. (Pl.'s Compl. ¶ 7). FedEx 2Day, one of the express delivery services offered by Plaintiff, provides customers with two-day committed delivery directly to the recipients. (Pl.'s Compl. ¶ 8). Defendant also offers a delivery service entitled Global Priority Mail which delivers to countries outside the United States. (Def.'s Mem. In Supp. of Mot. to Dismiss p. 4).
Defendant is an independent establishment of the executive branch of the United States Government. (Pl.'s Compl. ¶ 2). Defendant provides mail services to the general public, consisting of pickup and delivery of documents and parcels. (Pl.'s Compl. ¶ 9). Defendant also offers expedited mail delivery services for customers *947 willing to pay an additional amount of postage. (Pl.'s Compl. ¶ 9). One of these services, called Priority Mail, claims to provide mail delivery in two to three days measured from Post Office to Post Office. (Pl.'s Compl. ¶ 9).
Defendant commenced an advertising campaign to promote the use of Domestic Priority Mail in March, 1996 and an advertising campaign to promote the use of Global Priority Mail in April, 1996. (Def.'s Mem. In Supp. of Mot. to Dismiss p. 4). In its advertising campaign for Priority Mail, Defendant compares certain features of Priority Mail delivery service and FedEx 2Day express service, including the alleged prices of the services. (Pl.'s Compl. ¶ 10). Plaintiff alleges that these advertisements are false and misleading because they suggest that Priority Mail is equivalent or superior to Plaintiff's express service, FedEx 2Day. (Pl.'s Compl. ¶¶ 10, 12). Plaintiff alleges that the advertising campaign's descriptions of many of the features of Priority Mail and FedEx 2Day, including the price of FedEx 2Day, are false and misleading. (Pl.'s Compl. ¶ 10). Plaintiff also alleges that Defendant's advertising campaign promoting Global Priority Mail is also false and misleading because the advertisements state that Defendant is a company which delivers around the world. (Pl.'s Compl. ¶ 13). Plaintiff alleges that this statement is false because Defendant is not a company and it does not deliver around the world. (Pl.'s Compl. ¶ 13).
II. STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure enables a defendant to file a motion to dismiss for a plaintiff's failure to state a claim upon which relief can be granted. Motions to dismiss under Rule 12(b)(6) are designed to test "whether a cognizable claim has been pleaded in the complaint." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). Dismissal of a complaint for failure to state a claim streamlines litigation by "dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989).
Dismissal under Rule 12(b)(6) is appropriate where there is no set of facts which would entitle the plaintiff to recover. Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.1989). In reviewing a defendant's Rule 12(b)(6) motion to dismiss, a district court should construe the complaint in the light most favorable to the plaintiff, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.1990), cert. denied, 498 U.S. 867, 111 S. Ct. 182, 112 L. Ed. 2d 145 (1990). If an allegation is capable of more than one inference, it must be construed in the plaintiffs favor. Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1039-40 (6th Cir.1991). As the Supreme Court said in Hishon v. Spalding, 467 U.S. 69, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984), "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon at 73, 104 S. Ct. 2229.
A district court may not grant a defendant's Rule 12(b)(6) motion to dismiss based on its disbelief of the plaintiff's factual allegations. In Re Sofamor Danek Group, Inc., 123 F.3d 394 (6th Cir.1997), cert. denied., Murphy v. Sofamor Danek Group, ___ U.S. ___, 118 S. Ct. 1675, 140 L. Ed. 2d 813 (1998). It is not the court's function to weigh evidence or evaluate the credibility of witnesses. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). Rather, the court should accept all well-pleaded facts as true and not consider matters outside the pleadings. Hammond at 175.
Although a court reviewing a Rule 12(b)(6) motion to dismiss should construe the plaintiff's complaint liberally, "more than bare assertions of legal conclusions is ordinarily required to satisfy federal notice pleading requirements." Scheid at 436. Rather, a plaintiff's complaint will not survive a motion to dismiss under Rule *948 12(b)(6) unless it contains "either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. Accordingly, a district court need not accept as true conclusions of law or unwarranted factual inferences. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
III. ANALYSIS
A. Timeliness of Defendant's Rule 12(b)(6) Motion to Dismiss
The motion before this court is the second Rule 12(b) motion filed by the Defendant. Successive Rule 12(b) motions are governed by Rules 12(g) and 12(h)(2) of the Federal Rules of Civil Procedure. Rule 12(g) states in relevant part:
If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.
Fed.R.Civ.P. 12(g).
Rule 12(h)(2) states:
A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at trial on the merits.
Fed.R.Civ.P. 12(h)(2).
These rules taken together prohibit a defendant from raising the defense of failure to state a claim after filing an initial 12(b) motion to dismiss unless that defense is made in the defendant's answer to the complaint[1], motion for judgment on the pleadings, or at trial. These restrictions upon successive 12(b) motions were imposed to "eliminate unnecessary delays at the pleading stage of a case by avoiding the piecemeal consideration of pretrial motions." Rauch v. Day and Night Mfg. Corp., 576 F.2d 697, 701 (6th Cir.1978). As a result of Rules 12(g) and 12(h)(2), "a defendant who wishes to raise a defense to the court's personal jurisdiction must do so when he makes his `first defensive move,' whether by Rule 12 motion or by a responsive pleading." Id.
Defendant's Rule 12(b)(6) motion does not fall into any of the three categories enumerated in Rule 12(h)(2). Under the familiar canon of statutory construction, expressio unius est exclusio alterius, Rule 12(h)(2)'s authorization of three narrowly defined exceptions to the general prohibition against successive 12(b) motions automatically excludes any other means of filing successive Rule 12(b) motions. As the United States Court of Appeals for the Sixth Circuit stated in Swart v. Pitcher, No. 92-2401, 1993 WL 406802 (6th Cir. Oct.08, 1993), "Rule 12(h)(2), in setting out the ways in which a party may raise a failure to state a claim argument after the initial pre-answer motion, precludes the filing of a second 12(b)(6) motion to dismiss after an initial motion to dismiss." Swart at *3. In the present case, Defendant has failed to offer any evidence suggesting that the grounds for its current motion to dismiss were not available to Defendant when it filed its earlier 12(b) motion to dismiss for lack of subject matter jurisdiction. In fact, Defendant has not offered any explanation for why this failure to state a claim argument was not raised in its initial pre-answer motion. In light of the foregoing, Defendant's 12(b)(6) motion to dismiss is untimely and could be barred as such.
However, this court chooses to exercise its discretion in adherence to the *949 spirit of the law as opposed to the letter of the law in light of the fact that Defendant's earlier motion to dismiss challenged the court's subject matter jurisdiction. Although Defendant has not offered an explanation for its failure to file its 12(b) motion earlier, there is no evidence that this motion was filed simply to delay the action or to create an inconvenience for Plaintiff. There is also no reason to think that Defendant's motion has imposed or will impose undue hardship upon Plaintiff. In short, allowing Defendant to file this motion will not create an unjust delay or facilitate an abuse in motion practice. Therefore, this court will proceed to address the merits of Defendant's motion to dismiss.
B. Sufficiency of Pleadings
Plaintiff's cause of action against Defendant is governed by Section 43 of the Lanham Act which states in relevant part:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
....
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(B) (1997).
One of the purposes of the Lanham Act was to protect consumers from false or misleading advertising. Coca-Cola Co. v. Procter & Gamble Co., 822 F.2d 28, 31 (6th Cir.1987). Section 1125(a) of the statute promotes this purpose by creating a private cause of action for aggrieved competitors, the parties with the greatest interest in enforcing the prohibition against false and misleading advertising. Id.
Because the Sixth Circuit has not addressed the question of what elements are required to successfully plead a false advertising claim under the Lanham Act, this court looks to relevant precedent from other federal courts. The federal courts seem to have reached a consensus as to the elements required to plead a Lanham Act false advertising claim.[2]See e.g., Skil Corp. v. Rockwell International Corp., 375 F. Supp. 777, 783 (N.D.Ill.1974); Cook, Perkiss and Liehe, Inc. v. Northern California *950 Collection Service, Inc., 911 F.2d 242, 244 (9th Cir.1990); Hot Wax, Inc. v. Grace-Lee Products, Inc., No. 97 C 6882, 1998 WL 664945, at *2 (N.D.Ill. Sept.15, 1998); Max Daetwyler Corp. v. Input Graphics, Inc., 608 F. Supp. 1549, 1551 (E.D.Pa.1985); Barr Laboratories, Inc. v. Quantum Pharmics, Inc., 827 F. Supp. 111, 117 (E.D.N.Y.1993); Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir.1997). Those elements are: 1) a false statement of fact by a defendant in a commercial advertisement about its own or another's product; 2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; 3) the deception is material, in that it is likely to influence the purchasing decision; 4) the defendant caused its false statement to enter interstate commerce; and 5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products. Southland Sod Farms at 1139. The federal courts have identified two distinct types of falsehoods which satisfy the first element's requirement of a false statement of fact. Falsity includes both literal falsehoods, statements which are false on their face or by necessary implication, and those statements which, though literally true, are still likely to mislead or confuse consumers. Id. Courts have extended the scope of the Lanham Act beyond literal falsehoods because the "clever use of innuendo, indirect intimations, and ambiguous suggestions could shield the advertisement from scrutiny precisely when protection against such sophisticated deception is most needed". American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160, 165 (2nd Cir.1978).
1. Specificity of Plaintiff's Allegations
In the present case, Defendant contends that Plaintiff has failed to properly plead the elements of a Lanham Act false advertising claim. Defendant bases this contention upon the grounds that Plaintiff has failed to allege any false or misleading statements of fact with the degree of particularity required for a Lanham Act false advertising claim. Defendant urges the court to impose the requirements of Rule 9(b) of the Federal Rules of Civil Procedure upon Plaintiff's complaint or, in the alternative, at least require Plaintiff to plead the nature of the allegedly false advertisements. If either of these standards are used by this court, Defendant argues that Plaintiff's complaint should be found wanting.
The general rule governing the requirements for a plaintiff's complaint is found in Rule 8(a) of the Federal Rules of Civil Procedure. That rule states in relevant part:
A pleading which sets forth a claim for relief ... shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends ..., (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.
Fed.R.Civ.P. 8(b).
However, the Federal Rules of Civil Procedure require a heightened standard for pleadings in cases involving fraud or mistake. Under Rule 9(b), "the circumstances constituting fraud or mistake shall be stated with particularity" when a plaintiff raises allegations of fraud or mistake in her complaint. The federal courts are currently divided as to whether Rule 9(b) should apply to a Lanham Act claim. See Barr Lab., Inc. v. Quantum Pharmics, Inc., 827 F. Supp. 111, 117-118 (E.D.N.Y.1993) (listing cases where federal courts have 1) applied Rule 9(b) to Lanham Act claims and 2) refused to apply Rule 9(b) to Lanham Act claims).
As Defendant concedes, the Sixth Circuit has yet to decide this question. Nevertheless, in the present case, it is not necessary for this court to resolve the question of whether a Lanham Act false advertising claim must satisfy the pleading requirements of Rule 9(b). Even if the *951 court were to assume that Rule 9(b) applies, Defendant has failed to show how Plaintiff's complaint would not satisfy the threshold created by that rule.
Defendant relies upon Textile Deliveries, Inc. v. Stagno, No. 90 CIV.2020, 1990 WL 155709 (S.D.N.Y.1990) for the proposition that Rule 9(b) requires Plaintiff to allege the statements it claims are misleading, the identity of those responsible for the statements, the time and place of the allegedly misleading statements, and how the statements were misleading.[3]Textile Deliveries at *6. Defendant contends that Plaintiff has failed to identify the false or misleading statements which have caused it the alleged harm. Defendant further contends that Plaintiff's lack of specificity in its complaint has left the Defendant "in the dark, groping to decipher from Plaintiff's vague and indefinite allegations what light it could shed on the wrong it is alleged to have done in its advertising." (Def's Mem. in Supp. of Mot. to Dismiss pp. 6-7).
To understand why Plaintiff's complaint does satisfy Rule 9(b)'s requirements, it is necessary to review Sixth Circuit precedent concerning the purpose of the rule and how it should be construed by courts. The Sixth Circuit has identified two purposes underlying Rule 9(b): 1) to provide a defendant fair notice of the substance of a plaintiff's claim in order that the defendant may prepare a responsive pleading, Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 679 (6th Cir.1988), and 2) to allow the District Court to distinguish valid from invalid claims and terminate needless litigation early in the proceedings, Blount Financial Services, Inc. v. Walter E. Heller and Co., 819 F.2d 151, 153 (6th Cir.1987). The Sixth Circuit construes Rule 9(b) liberally, Coffey v. Foamex L.P., 2 F.3d 157, 161-162 (6th Cir. 1993), and requires district courts to interpret the rule in harmony with Rule 8's policy of simplicity in pleadings, Arnold v. Arnold Corp.-Printed Communications for Bus., 920 F.2d 1269, 1279 (6th Cir.1990) (quoting Michaels Bldg. Co. at 679). The Sixth Circuit has also warned that it is inappropriate for a court to focus exclusively on Rule 9(b)'s particularity requirement because such a narrow approach fails to honor the general simplicity and flexibility envisioned by the Federal Rules of Civil Procedure. Michaels Bldg. Co. at 679.
Here, Plaintiff's complaint satisfies both purposes underlying Rule 9(b). Although Plaintiff's complaint does contain some conclusory and vague allegations[4], it also alleges facts which have given Defendant sufficient notice to prepare responsive pleadings. Plaintiff alleges that Defendant's advertising "represents and implies that Priority Mail is equivalent or superior to FedEx 2Day." (Pl.'s Compl. ¶ 10). Plaintiff supports this allegation in paragraph 11 by pointing to one of Defendant's print advertisements which claims that FedEx charges an additional fee for *952 Saturday delivery while Defendant delivers on Saturday at no additional cost. Plaintiff avers that this advertising statement is misleading because it implies that Defendant offers express delivery service when it does not and suggests that Defendant offers the same services as Plaintiff does with no additional charges for Saturday delivery. In paragraph 13, Plaintiff pleads another specific misrepresentation: Defendant's characterization of itself as a company. As Plaintiff explains in its Memorandum in Opposition to Defendant's Second Motion to Dismiss, Defendant's description of itself as a company is misleading to consumers if it implies that Defendant is a private, commercial business comparable to Plaintiff. Furthermore, Plaintiff pleads with particularity in paragraph 13 when it alleges that Defendant misled consumers with its statement that it delivers "around the world." Plaintiff avers that it was misleading for Defendant to advertise itself as delivering "around the world" when it only delivers to twenty to thirty countries, especially in light of the fact that FedEx delivers to 212 countries.
The court fails to see how these three allegations are not sufficiently specific to allow Defendant to prepare its responsive pleadings. All three allegations specify the misleading statement and the nature of the alleged deception perpetrated upon consumers. All three allegations identify the Defendant as the source of these misleading statements. Plaintiff's complaint identifies the place of these allegedly misleading statements as advertisements disseminated through television, radio, direct mail and print media. Plaintiff's allegations that the advertising campaign in question is "presently being conducted" along with its averment that it is suffering "continuous irreparable harm" should satisfy the time requirement. Where the allegedly misleading advertising has occurred over a long period of time, it would be unreasonable and contrary to the Sixth Circuit's liberal construction of Rule 9(b) to require Plaintiff to identify the exact day, hour or place of every advertisement which made the allegedly misleading statements. See e.g., Hot Wax, Inc. at *4 (stating that Rule 9(b)'s pleading requirements with respect to time apply less stringently where the alleged fraud occurred over a period of time). This is especially true in this case where it is clear that Defendant is aware of the advertising campaigns referred to in Plaintiff's complaint, when those campaigns started, and how long they have run.[5] Plaintiff has already alleged the existence of a specific print advertisement that is representative of the type of misleading statements it alleges are currently being disseminated by Defendant. In light of Defendant's awareness of the allegedly misleading statements, *953 dismissal of Plaintiff's complaint because it failed to specify the time to the extent that other cases might require would constitute the narrow approach the Sixth Circuit warned against in Michaels Bldg. Co. v. Ameritrust Co., N.A. The court expressly declines Defendant's invitation to do so here. Defendant's motion to dismiss is denied to the extent that it is based upon Defendant's allegations that Plaintiff's complaint was insufficiently particularized to state a claim under the Lanham Act.
2. Materiality of Plaintiff's Allegations
Defendant also contends that Plaintiff's complaint fails to satisfy the third element of a Lanham Act false advertising claim requiring that the alleged deception be material. Defendant argues that even if its advertising statements were construed by some consumers as misleading, that deception would not affect those consumers' purchasing decision because 1) whether Defendant is considered to be a corporation or not is not likely to affect consumer's buying patterns, and 2) if a consumer were lured to Defendant's place of business, he would quickly discover Defendant's mailing limitations with respect to international destinations and choose to go elsewhere if he desired to ship a package to a country outside the scope of Defendant's delivery area. Because neither of these alleged misrepresentations would affect the consumer's purchasing decision, Defendant contends that the alleged misleading statements are not material and therefore not actionable under the Lanham Act.
Defendant is correct in noting that false or misleading statements must be material before liability will ensue under the Lanham Act. For purposes of the Lanham Act, materiality is defined in terms of a statement's propensity to have some effect on consumers' purchasing decisions. See National Basketball Ass'n v. Sports Team Analysis and Tracking Systems, Inc., 939 F. Supp. 1071, 1109 (S.D.N.Y.1996). Immaterial statements are not actionable under the Lanham Act because they are not relied upon by consumers in making their purchasing decisions and therefore do not have "an adverse effect on either of the groups which the Lanham Act seeks to protect." Id. at 1110. In assessing whether a misrepresentation is material, a court should evaluate the entire advertisement and consider the alleged misleading statement in its context. Id.
Although materiality is a legal determination, such a determination should be informed by factual evidence concerning the relevant consumer market. When a court assesses materiality, the relevant perspective is that of the consumers. See American Tel. and Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1428 n. 9 (3rd Cir.1994), cert. denied, 514 U.S. 1103, 115 S. Ct. 1838, 131 L. Ed. 2d 757 (1995). Even if this court believed that Defendant's statements should not have been material, it would be premature to dismiss Plaintiff's cause of action without any knowledge of the consumers' perceptions of materiality. Plaintiff has pled that the representations are material and has offered facts in support of that contention. Moreover, this court does not find that Defendant's statements are of such a nature that no reasonable consumer could consider them as material. In short, Plaintiff has satisfied the minimal requirements to plead a cause of action under the Federal Rules of Civil Procedure. Whether Defendant's representations are material is a question properly addressed after evidence has been submitted to the court.[6]*954 Accordingly, Defendant's motion to dismiss Plaintiff's false advertising claims for lack of materiality is denied.
3. Falsity of Defendant's Statements
Defendant further contends that its advertising statement claiming that it delivers on Saturday without a surcharge while Plaintiff charges an additional fee for Saturday deliveries is true and exempt from liability under the Lanham Act. Defendant supports its contention by arguing that its advertisements specifically stated that it delivers Priority Mail on a national average of two to three days. Defendant contends that this statement operated as a disclaimer of any delivery guarantee and thereby obviated any need to explicitly state that it fails to offer guaranteed delivery. Moreover, Defendant argues that any confusion as to whether its Priority Mail service is exactly the same as the FedEx 2Day service offered by Plaintiff should have been dispelled by the dramatic price differential between the two services. Finally, Defendant contends that it should not be held liable under the Lanham Act simply because it omitted a statement explaining that it does not offer guaranteed Saturday delivery.
Defendant's efforts to identify all the evidence which should have prevented consumers from perceiving Defendant as offering a guaranteed express delivery service comparable to that offered by Plaintiff is to no avail at this juncture in the case. As this case progresses, Plaintiff may be unable to bear its burden to prove that consumers were deceived or likely to be deceived because of the obstacles created by the very evidence noted in Defendant's motion to dismiss. However, the time has not come for this court to determine the truth or falsity of Defendant's advertising statements. As the court stated in Johnson & Johnson Merck Consumer Pharmaceuticals Co. v. Smithkline Beecham Corp., 960 F.2d 294 (2nd Cir.1992), "[g]enerally, before a court can determine the truth or falsity of an advertisement's message, it must first determine what message was actually conveyed to the viewing audience." Johnson & Johnson Merck Consumer Pharmaceuticals Co. at 298. The court has no way of knowing what message was conveyed to consumers by Defendant's statements without some evidence bearing on the question. Looking at such evidence would be inappropriate when all the court has been asked to do is to determine whether Plaintiff has sufficiently pled the elements of a Lanham Act false advertising claim. Accordingly, the court denies Defendant's motion to dismiss to the extent that it is based upon the argument that its statements are not false.
C. Puffery
Defendant argues that its characterization of itself as a company and its statement indicating that it delivers around the world constitute puffery and therefore should not subject Defendant to liability under the Lanham Act. Puffery has been defined as "exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely." Southland Sod Farms at 1145; see also Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 945 (3rd Cir.1993) (defining puffery as "an exaggeration or overstatement expressed in broad, vague, and commendatory language"); Stiffel Co. v. Westwood Lighting Group, 658 F. Supp. 1103, 1114 (D.N.J.1987) (defining puffery as "advertising the advantages of a product, including claims of general superiority"); Toro Co. v. Textron, Inc., 499 F. Supp. 241, 253 (D.Del.1980) (characterizing an advertisement as puffing where it is "not deceptive for no one would rely on its exaggerated claims"). Because statements of puffery are so broad in scope, so general in nature and so exaggerated in content that no reasonable person would rely upon them, a defendant *955 cannot be held liable for "puffing" under the Lanham Act. See Cook, Perkiss and Liehe, Inc. at 246; Southland Sod Farms at 1145; Castrol at 945. However, puffery does not include "misdescriptions or false representations of specific characteristics of a product", Castrol at 945, and any such statements made by Defendant are not exempt from liability under the Lanham Act.
In the context of this particular case, Defendant's representation of itself as a company should not be characterized as puffery. The issue raised by the use of the word "company" is whether that term confused or misled a segment of consumers as to the true nature of Defendant's Priority Mail and Global Priority Mail services. Plaintiff argues that the term "company" evoked images of a private, commercial enterprise in the minds of the buying public and misled those potential customers into comparing Plaintiff and Defendant as two private companies providing express delivery services. Defendant's description of itself as a "company" in its advertising campaign was not an example of "exaggerated advertising, blustering and boasting" or "claims of general superiority." Defendant's description of itself as a "company" was not so vague and exaggerated that no reasonable person could have relied upon it. In short, Defendant's use of the word "company" was not the sort of representation usually associated with puffery.[7] Quite to the contrary, Defendant's representation of itself as a company was a specific description of a characteristic allegedly possessed by Defendant. Factual claims such as this one are actionable under the Lanham Act if they have misled or confused a significant segment of consumers.
Defendant argues that its representation of itself as a company cannot possibly be deemed a factual claim because a "common sense" awareness of the Postal Service and its governmental nature should preclude reasonable reliance upon any phrase or word suggesting that Priority Mail and Global Priority Mail are services offered by a private commercial entity. While it may be true that no consumer construed or was likely to construe Defendant's description of itself as a company, those considerations are not relevant to the inquiry at hand. In a motion to dismiss for failure to state a claim, a court addresses a very narrow question: has the Plaintiff pled facts respecting all material elements of the claim in question? Whether consumers should have known that any service advertised by the Postal Service must be a governmental service bears very little on the question of whether a proper complaint has been filed. The answer to the question raised by Defendant's arguments requires evidence and thus is more properly resolved in the disposition of a motion for summary judgment. Furthermore, it would not be appropriate for this court to rely upon such ambiguous concepts as "common sense" or its own intuitive notions of how an advertising statement should have been interpreted to conclude that Defendant's statement is not actionable because no one could have relied upon it. The relevant barometer is the opinion of the consumer, not that of a court. See, e.g. American Home Products Corp. at 165-166 (quoting American Brands, Inc. v. R.J. Reynolds Tobacco Co., 413 F.Supp. *956 1352, 1356-57 (S.D.N.Y.1976)); Johnson & Johnson Merck Consumer Pharmaceuticals Co. at 297-98 (2nd Cir.1992); Castrol at 943.
Defendant also contends that its advertising statement indicating that its Priority Mail and Global Priority Mail services deliver "around the world" also constitutes inactionable puffery under the Lanham Act. Defendant supports this contention by arguing that the phrase "around the world" is "a generalized statement, too vague and ambiguous to convey the message that Global Priority Mail is delivered to literally every country in the world." On its face, the phrase "around the world" does seem to be the type of vague, general exaggeration which no reasonable person would rely upon in making a purchasing decision. Nevertheless, the determination of whether an advertising statement should be deemed puffery is driven by the context in which the statement is made. Where the context of an advertising statement may lend greater specificity to an otherwise vague representation, the court should not succumb to the temptation to hastily rule a phrase to be inactionable under the Lanham Act. To do so would insulate from liability some of the misleading advertising which the Lanham Act was intended to prohibit. Thus, this court will proceed to analyze whether the vagueness created when the phrase "around the world" is isolated from its context disappears once that phrase is placed back into its context.
In the present case, the context is the mail and parcel delivery industry. Where, as here, consumer perceptions are so critical to Defendant's liability under the Lanham Act, this court should evaluate the specificity of the phrase "around the world" against the backdrop of industry norms. For example, if the industry norm for scope of delivery were 200 countries and customers had become aware of this norm, it would be misleading for a company to advertise that it delivers "around the world" when it only delivers to one country. Although the phrase "around the world" would be vague in a vacuum, the context of the mail and parcel delivery industry and its norms would give a more concrete meaning to the phrase and may lead consumers to reasonably believe that the company which made the statement offers a scope of coverage at least comparable in extent to that of its competitors, if not superior. In such a fashion, information concerning industry norms can convert an advertising statement from puffery into a misleading representation of fact which is actionable under the Lanham Act.
However, at this stage of the litigation between Plaintiff and Defendant, the court does not have sufficient information to even begin any analysis of industry norms. If the court were to adopt Defendant's characterization of its statement concerning delivery "around the world" as puffery and grant its motion to dismiss, Plaintiff's cause of action would be lost despite the possibility that the term "around the world" is sufficiently specific in the context of industry norms and in the minds of the buying public to render it actionable under the Lanham Act. Because a motion to dismiss can be granted only when "no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon at 73, 104 S. Ct. 2229, dismissal is not proper in the instant case since relief could be granted under the Lanham Act if Plaintiff is able to show that the term "around the world" was actually a misdescription of Defendant's characteristics. Accordingly, the court denies Defendant's motion to dismiss on the grounds that Defendant's statements constituted puffery.
IV. ORDER
Based on the foregoing, Defendant's Rule 12(b)(6) Motion to Dismiss Plaintiff's false advertising claims under 15 U.S.C. § 1125(a) is DENIED.
IT IS SO ORDERED.
NOTES
[1] Among other things, Rule 7(a) authorizes replies and answers to complaints, counterclaims, and cross claims. In the context of this case, the pleading "permitted or ordered under Rule 7(a)" would refer to Defendant's answer, which had not been filed at the time this opinion was drafted.
[2] Some of these cases require the plaintiff to plead that the defendant made a false statement of fact about its own products in competitive advertising while others require the plaintiff to plead that the defendant made false statements of fact about its own products or a competitor's products. This difference can be explained by the passage of the Trademark Law Revision Act of 1988, Pub.L. No. 100-667, 102 Stat. 3935 (1988) ("TLRA"). Prior to the passage of the TLRA, subsection (a) read as follows:
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, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.
Some courts construed this language to limit a Lanham Act cause of action for false advertising to statements made about the defendant's own products. See e.g., Bernard Food Industries v. Dietene Co., 415 F.2d 1279 (7th Cir.1969), cert. denied, 397 U.S. 912, 90 S. Ct. 911, 25 L. Ed. 2d 92 (1970); Skil Corp. at 783; Max Daetwyler Corp. at 1551. In 1988, Congress passed the TLRA to, among other things, clarify that a Lanham Act cause of action could be brought against a defendant who had made false or misleading representations of fact about its own products or a competitor's products. See McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 1549 n. 1 (2nd Cir.1991).
[3] The Sixth Circuit has also noted that Rule 9(b) requires a plaintiff at a minimum "to allege the time, place and contents of the misrepresentation upon which he relied." Bender v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir.1984).
[4] For example, in paragraph 10 of its complaint, Plaintiff alleges that "[t]he descriptions of many of the features of Priority Mail and FedEx 2Day, including the price of FedEx2Day, contained in the campaign are false or misleading." Although this statement does specify the price as one of the misleading descriptions which Plaintiff claims are actionable under the Lanham Act, the phrase "many of the features" is vague and does not grant Defendant any notice as to which additional descriptions are also the subject of this lawsuit.
Paragraph 14 of Plaintiff's complaint refers to "other false and misleading statements, implications, representations and descriptions in the ads." Again, this isolated phrase is vague and conclusory in nature and does indeed leave Defendant "groping in the dark" as to the factual predicate for Plaintiff's cause of action. If Plaintiff's complaint consisted of no allegations other than those identified in this footnote, Defendant's motion would be well-taken. However, Plaintiff has pled more specific allegations which warrant a denial of Defendant's motion to dismiss.
[5] In the Facts section of Defendant's Memorandum in Support of Motion to Dismiss, the Defendant states the following:
The Postal Service commenced an advertising campaign in March of 1996 to promote the use of Domestic Priority Mail and an advertising campaign in April of 1996 to promote the use of Global Priority Mail. With regard to the Domestic Priority Mail campaign, FedEx alleges that it was harmed because the advertising campaign compared features of Domestic Priority Mail delivery service with FedEx 2Day express service in a way that represented and implied that Domestic Priority Mail is equivalent to or superior to FedEx 2Day....
....
With regard to the advertising campaign concerning Global Priority Mail, Plaintiff alleges that an unspecified ad that describes the Postal Service as a "company" that delivers "around the world" is false because it is not a company and does not deliver Global Priority Mail to countries around the world.
(Def.'s Mem. in Supp. of Mot. to Dismiss pp. 3-4).
With these statements, Defendant appears to be eminently aware of the advertising campaign referred to in Plaintiff's complaint. In fact, Defendant goes so far as to identify the month and year these campaigns actually began. Moreover, Defendant does not claim to be unaware of the three specific allegations made by Plaintiff in its complaint. Quite to the contrary, Defendant purports to explain how those allegedly misleading representations of fact are actually true and incapable of misleading consumers.
[6] Defendant submitted a decision of the National Advertising Review Board (NARB) of the Council of Better Business Bureaus dismissing the National Advertising Division's finding that a price comparative ad was misleading where a competitor had failed to disclose a guarantee feature. Defendant argues that this decision is relevant to the case at hand because of the factual similarities between the two cases. In adherence to Rule 12(b), this court declines Defendant's implicit invitation to convert this motion to dismiss into a Rule 56 motion for summary judgment and therefore excludes from its consideration any material offered in addition to Defendant's legal arguments in support of the motion to dismiss. As the Hammond court stated, a district court should not consider matters outside the pleadings when disposing of a motion to dismiss. Hammond at 175.
[7] Most statements of puffery consist of vague advertising claims that one's product is better than comparable products offered by competitors. For example, the Southland Sod Farms court found that a turfgrass seed and sod producer's advertising statement, "Less is More", was generalized boasting and should be deemed as nonactionable puffery. Southland Sod Farms at 1145. In Smith-Victor Corp. v. Sylvania Electric Products, Inc., 242 F. Supp. 302 (N.D.Ill.1965), the court identified statements such as, "far brighter than any lamp ever before offered for home movies," and "the beam floods an area greater than the coverage of the widest angle lens," as examples of puffery. In contrast to these statements, Defendant's representation of itself as a company did not make any comparisons whatsoever to Plaintiff or to any other competitor. Indeed, Defendant's description of itself could not have been comparative statement of superiority because its competitors are all companies as well. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1960940/ | 11 S.W.3d 380 (2000)
Robert S. FRANK, Individually and as the Executor of the Estate of Ida L. Frank and as Trustee for The Joe Frank Trust, The Nancy A. Frank 1975 Trust, and The Daniel S. Frank Trust, Nancy A. Frank, Daniel S. Frank, Edgar E. Hancock as Trustee for Marek Bros. Profit Sharing Plan, Marek Bros. 401(K) Plan, MBC Foundation, The Executive Group, Ralph Marek, Paul A. Marek, Bruce Marek, R. Stan Marek, William A. Marek Sr., John L. Marek, Martha Marek, Bessie Marek, Frances Marek, Reinnette Marek, and Katherine Marek, and Charles M. Schwarz, Individually and as Trustee of his IRA Account, Appellants,
v.
BEAR, STEARNS & CO., CS First Boston Corp., Goldman, Sachs & Co., Greenwich Capital Markets Inc., Kidder Peabody & Co., Nomura Securities International Inc., Painewebber Inc. and Salomon Bros. Inc., Appellees.
No. 14-98-01062-CV.
Court of Appeals of Texas, Houston (14th Dist.).
January 13, 2000.
*381 Jerald Davis Mize, Houston, for appellants.
*382 Phylis J. Cohen, Charles W. Schwartz, Gerald G. Pecht, Houston, for appellees.
Panel consists of Justices DRAUGHN, LEE, and HUTSON-DUNN.[*]
OPINION
NORMAN LEE, Justice.
Plaintiff investors filed suit charging defendant underwriters violated the Texas Securities Act, Tex.Rev.Civ. Stat. Ann. art. 581-33 (Vernon 1964 & Supp.1999) in their marketing of certain exotic securities. They also charged defendants negligently marketed securities and breached a contract to which they were third-party beneficiaries. The trial court granted summary judgment on their claims without specifying a ground, prompting the investors to appeal. We affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
Appellants are individuals and small institutional investors who purchased certain securities issued by the Federal National Mortgage Association ("Fannie Mae") and the Federal Home Loan Mortgage Corporation ("Freddie Mac"), issues underwritten by appellees. They were solicited byand bought fromHigh Yield Management Securities Inc., a Houston investment firm which has since gone into bankruptcy. These securities, known as "collateralized mortgage obligations," were sophisticated instruments backed by income streams from pools of home mortgages. It is undisputed that these securities were extremely volatile and not suitable for less sophisticated investors.[1] Due to unfavorable market fluctuations, the holders of these securities sustained large losses, which they now seek to recover from the underwriters.
Plaintiffs' claims can be grouped under three headings. Under the first, plaintiffs contend the underwriters violated the Texas Securities Act by either controlling HYM or facilitating fraudulent acts by HYM. Under the second, plaintiffs argue Fannie Mae and Freddie Mac required the underwriters to furnish copies of the Disclosure Documents supplied by those agencies to purchasers, and that the underwriters did not do so. They contend they are third-party beneficiaries to this contract and as such can enforce it against defendants. Under the third heading, plaintiffs argue that the underwriters negligently placed these securities into the stream of commerce, breaching a duty to monitor the sales of these dangerous securities to see that they were only sold to suitable buyers. Summary judgment was granted on all claims without specifying a cause.
STANDARD OF REVIEW
The underwriters sought summary judgment under both traditional and "no-evidence" standards. Under the traditional standard, the party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex.1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant; every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549. A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's *383 causes of action is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993).
The movant is also entitled to summary judgment if the nonmovant cannot produce competent summary judgment proof for all essential elements of its claim. See Tex.R. Civ. P. 166a(i); Ortmann v. Ortmann, 999 S.W.2d 85, 87 (Tex.App.-Houston [14 th Dist.] 1999, pet. denied). We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moritz v. Bueche, 980 S.W.2d 849, 853 (Tex.App.-San Antonio 1998, no pet.). We look at the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Id.
TEXAS SECURITIES ACT
Appellants' first issues will be determined largely by whether there is a privity requirement contained in the Texas Securities Act. Fortunately, the drafters of the 1977 revisions to 581-33 included extensive comments which we find invaluable in resolving these questions.
The provisions at issue state:
Art. 581-33. Civil Liabilities.
A. Liability of Sellers.
* * *
(2) Untruth or Omission. A person who offers or sells a security ... by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, is liable to the person buying the security from him ...
The comments to the 1977 revisions to the Act contain the notation that the section in question "is a privity provision, allowing a buyer to recover from his offeror or seller ..." The comment goes on to note that "some nonprivity defendants may be reached" under other sections of the Act not applicable here. Commentators at the time of revision had little doubt that the revision was intended to contain a privity provision. See Hal M. Bateman, Securities Litigation: The 1977 Modernization of Section 33 of the Texas Securities Act, 15 HOUS. L. REV. 839, 847 (1978).
Nevertheless, appellants argue that Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704 (1956) is applicable to this case and makes the underwriters liable to them. In Cole, the Texas Supreme Court defined the term "seller" broadly, making liable to an aggrieved buyer any person who served as a "link in the chain of the selling process." Id. at 629, 291 S.W.2d at 708. The appellants' reliance on Cole is undermined, however, by the fact that the statute has been significantly amended twice since that case was decided. Under the 1977 amendments the liability for "control persons and aiders" was incorporated into a new section of the statute; the comment pertinent to that section notes that "Brown v. Cole should have no application to the new law, since § 33 F provides quite specifically who, besides a person who buys or sells, is liable, and the criteria for such liability." Guided by this comment, we look to see if § 33 F of the Act supports liability for these defendants.
Defendants are liable under this section if they directly or indirectly control a seller, buyer or issuer of a security, 581-33 F § 1, or if they directly or indirectly, with intent to deceive or defraud, materially aids a seller, buyer or issuer of a security. 581-33 F § 2. Because different tests apply to the two sections, we will take each in turn.
1. The Control Person Test
The Act creates liability for persons "who directly or indirectly controls a seller, buyer, or issue of a security" who run a foul of 581-33 A. According to the comment, "[t]he rationale for control person liability is that a control person is in a position to prevent the violation and may *384 be able to compensate the injured investor when the primary violator (e.g., a corporate issuer which has gone bankrupt) is not." The comment also notes that "a control person might include an employer, an officer or director, a large shareholder, a parent company, and a management company." Id. Control is defined in the same terms as under federal securities law; under that law "control means the possession, direct or indirect, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract, or otherwise." Id.
Federal courts construing control person liability have fashioned a two-prong test: that the defendant exercised control over the operations of the corporation in general, and that the defendant had the power to control the specific transaction or activity upon which the primary violation is predicated. Abbott v. Equity Group Inc., 2 F.3d 613, 620 (5 th Cir.1993) (quoting Metge v. Baehler, 762 F.2d 621, 631 (8 th Cir.1985). Texas courts interpreting this requirement have held only that a major shareholder or director is a "control person" for purposes of the statute. Summers v. WellTech Inc., 935 S.W.2d 228, 231 (Tex.App.-Houston [1st Dist.] 1996, no writ); Busse v. Pacific Cattle Feeding Fund, 896 S.W.2d 807, 815 (Tex.App.-Texarkana 1995, writ denied). Plaintiffs did not produce competent proof that the underwriters controlled the internal affairs of HYM; in fact, the underwriters' affidavits denied having any control over HYM. Summary judgment on this point was therefore proper.
2. Aider and Abettor Liability
A further question arises as to whether the underwriters are "aiders and abettors" for purposes of the statute.
Texas law imposes joint and several liability for anyone who "directly or indirectly with intent to deceive or defraud or with reckless disregard for the truth or the law materially aids a seller, buyer, or issuer of a security." Tex.Rev.Civ. Stat. Ann. art. 581-33 F, § 2 (Vernon Supp. 1999). In order to establish liability under this standard, a plaintiff must demonstrate 1) that a primary violation of the securities laws occurred; 2) that the alleged aider "had `general awareness' of its role in this violation; 3) that the actor rendered "substantial assistance" in this violation; and 4) that the alleged aider either a) intended to deceive plaintiff or 2) acted with reckless disregard for the truth of the representations made by the primary violator. Keith A. Rowley, The Sky is Still Blue in Texas: State Law Alternatives to Federal Securities Remedies, 50 Baylor L.Rev. 99, 182 (1998) (citing Abbott v. Equity Group Inc., 2 F.3d 613, 621 (5th Cir.1993) and Ins. Co. of North America v. Morris, 928 S.W.2d 133, 153 (Tex.App.-Houston [14 th Dist.] 1996, rev'd on other grounds, 981 S.W.2d 667 (Tex.1998)).
Only Ins. Co. of North America v. Morris, 981 S.W.2d 667 (Tex.1998), has interpreted 33 F § 2. In that case an insurance company acted as a surety, guaranteeing promissory notes given by investors participating in syndicated oil and gas partnerships; as part of its duties it reviewed the private placement memoranda for compliance with the law. Agents for the principal misrepresented the partnerships to investors; when they proved unprofitable, the investors defaulted. Id. at 671. INA made good on its guarantee and sued the investors for indemnity; they counterclaimed for, among other things, TSA § 33 F violations. Id. The trial court instructed the jury that to find INA liable as an aider, they had to find that there was a TSA violation and that INA was aware of the violations but recklessly disregarded the fact of the violation. Id. at 675. Although a jury found liability under 581-33 F, the supreme court found no evidence that INA was aware of the violation; the court so held even when the surety knew the president of the issuing company had been enjoined by federal authorities from offering unregistered securities like those *385 being offered. Morris, 981 S.W.2d at 675-676. The supreme court found the evidence did not show INA knew of an injunction in force at the time of the sale, and found that INA did not have a duty to disclose this information to the investors. Id. at 676.
Plaintiffs here have a less substantive case than did the plaintiffs in Morris. There is no showing that the underwriters knew of any securities law violation by, or enforcement action against, HYM. Moreover, if the surety in Morris did not have a duty to disclose known prior security violations to investors, we will not imply a duty by the underwriters to communicate the riskiness of this investment to investors in our case. We therefore overrule appellants' first, second and third issues.
THIRD-PARTY BENEFICIARIES
In their fourth issue presented appellants contend, in essence, that they were third-party beneficiaries of the contracts between the underwriters and the issuing agencies, which required that investors be provided a copy of the prospectus before purchase. We disagree.
In order to show that they were third-party beneficiaries, appellants must first show that the agreement relied on, in this case agreements between Fannie Mae and Freddie Mac on the one hand and the underwriters on the other hand, was intended to benefit them directly. The underwriters contend that the agreements in question do not require them to deliver copies of the prospectus to remote purchasers such as appellants. We agree.
The language of Freddie Mac's agreement with the underwriters requires the underwriters to "deliver to each purchaser from it in the initial distribution of the Multiclass PCs a copy of the Offering Circular." The language from Fannie Mae's agreement with the underwriters provides that these disclosure documents "shall be used by the Dealer in selling the REMIC Certificates." Since appellants did not buy the securities in question from the underwriters, they could not have been an intended beneficiary under this agreement. Therefore plaintiffs are not third-party beneficiaries.
This finding is buttressed by the language of the Guidelines incorporated into the agreements. The Guidelines require "each dealer participating in a distribution of Securities should deliver or cause to be delivered the applicable Offering Documentation to each offeree who requests such documentation and to each person or entity who purchases Securities from the Dealer."[2] There is no such request in this record, merely assertions by the appellants that they were not given a copy of the disclosure documents before they purchased the securities in question. And again, since appellants did not purchase securities from the underwriters, the underwriters had no obligation under the agreement to deliver documentation to appellants.
Because appellants could not show breach of an agreement, then, we need not analyze whether they are third-party beneficiaries who may enforce the agreement against the underwriters. We therefore overrule appellants' fourth issue.
NEGLIGENCE
Appellants contend in their fifth issue that the underwriters negligently placed these securities in the stream of commerce, causing harm, and therefore should be held liable. Our analysis begins, as it must, with the question of whether a given defendant owed a duty to a give plaintiff. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Greater Houston Trans. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Whether this duty exists is a question of law for the court to decide from the facts surrounding the occurrence in question. Id.; Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 312 (Tex.1983). *386 Courts engaged in such duty analysis consider several interrelated factors, including the risk, forseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Phillips, 801 S.W.2d at 525.
Our analysis weighs against creating a negligence cause of action under the circumstances presented to us. First, there is a comprehensive regime regulating the issuance and sale of securities, which argues against the need to extend tort liability to these situations. Secondly, we believe the application of tort liability is ill-suited to an arena where downside risk is a feature inherent in the concept of the securities market. Finally, we believe adopting this suggested "strict liability" approach would be destructive to this area of commerce. We therefore decline appellants' invitation to find the underwriters liable in tort.
We therefore overrule appellants' fifth issue and affirm the judgment of the trial court.
NOTES
[*] Senior Justices Joe L. Draughn, Norman Lee, and D. Camille Hutson-Dunn sitting by assignment.
[1] In order to make CMOs more attractive to investors, most of the risk for an entire pool of mortgages was concentrated in the lowest class of securities like the ones at issue here. In fact, our record shows that these securities were so undesirable that they were known in the trade as "toxic waste" or "waste products."
[2] "Dealer" in this case refers to the underwriters. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2460580/ | 976 S.W.2d 882 (1998)
THE KROGER CO., Appellant,
v.
Sonja KENG, Appellee.
No. 12-97-00267-CV.
Court of Appeals of Texas, Tyler.
August 31, 1998.
*884 Evelyn T. Ailts, Houston, for appellant.
G. Wesley Urquhart, Kenneth A. Zimmern, Houston, for appellee.
Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.
HOLCOMB, Justice.
Appellant, The Kroger Company ("Kroger") appeals a judgment in favor of Appellee, Sonja Keng ("Keng") for $30,000 in damages. This is a workers' compensation nonsubscriber case in which the jury found that Kroger's negligence caused Keng's injury. Kroger raises two issues on appeal: 1) whether the trial court erred when it failed to submit a jury question on comparative responsibility; and 2) whether there was sufficient evidence to support the jury's verdict. We will affirm.
We will first address the factual sufficiency issue. Kroger alleges that the evidence is factually insufficient to support a finding that it owed Keng a duty, that it breached this duty or that Keng was even injured. When we review questions of factual sufficiency, we consider and weigh all of the evidence, both in support of and contrary to the jury verdict. The verdict must be upheld unless we conclude it is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791, 794 (Tex.App.Tyler 1995, writ denied). We may not substitute our opinion for that of the jury merely because we might draw different inferences or conclusion. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 797 (1951).
If an employee is injured on-the-job, and the employer is a nonsubscriber, an employee must prove actionable negligence. See J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941, 944 (Tex.Civ.App.Beaumont 1973, writ ref. n.r.e.). In proving actionable negligence, he is required to prove a legal duty owed, breach of that duty, and damages proximately caused by that breach. Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995). Kroger acknowledges its duty, as an employer, to use ordinary care in providing its *885 employees a safe place to work while not making it an insurer of its employees' safety at work. Id.
An employer must provide rules and regulations for the safety of its employees, furnish safe machinery and instrumentalities, provide a safe place to work, and select careful and competent fellow servants. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 923-24 (Tex.1981). The Texas Supreme Court has instructed us that the duty to provide safe instrumentalities and/or a duty to establish and enforce particular safety measures in a particular case is necessarily fact specific. Therefore, negligence depends on the facts of each case. Great Atlantic & Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 251 (1943). The test may be summed up as stated as follows:
Doubtless many orders by the master expose the servant to some risk of harm; but whether the master is negligent in ordering his servant to perform a task depends upon whether he ought to realize that the order exposes the servant to an unreasonable risk of harm. (emphasis in the original)
Gulf, Colorado & Sante Fe Ry. Co. v. Waterhouse, 223 S.W.2d 654, 659 (Tex.Civ.App. Beaumont 1949, writ ref'd n.r.e.), as cited in J. Weingarten, Inc., 490 S.W.2d at 945. Thus, the injury at issue must be reasonably foreseeable in the context of the work being performed.
According to the record, Keng had been working in the deli department at the Kroger store located on Airline in Houston, Texas, since September 15, 1991. Her job duties mainly included waiting on customers, making sandwiches and selling pastries. On Saturday, February 26, 1994, the store's assistant manager, Ms. Stacey Sweeney ("Sweeney"), told Keng to move some out-dated pie boxes out of the deli freezer. Keng did not move the pie boxes that day. When Keng returned to work the next day, Sweeney again told Keng to move frozen pie boxes. Keng suggested waiting until the deli manager was on duty so that he could determine whether the pie boxes should be removed. She also complained to Sweeney that moving items such as the pie boxes was not normally part of her job. Sweeney again told Keng to move the boxes and Keng unsuccessfully repeated her proposal that they should wait until the deli manager was present to assist her. Sweeney insisted that Keng move the boxes and engaged the services of an older co-worker named Clarence ("Clarence") to help her. Clarence did not assist Keng in the removal of the boxes from the shelves. Instead, Keng handed the boxes to Clarence, who then placed them on a cart and rolled them into a large freezer. Clarence left to perform other duties before Keng began removing boxes from the top two shelves. Keng described how those boxes stuck out or protruded over the lip of the shelves. In order to reach them, Keng secured a ladder. She testified that the pie boxes each weighed approximately forty pounds and that she had removed approximately fifty pie boxes before the accident. Kroger, on the other hand, presented testimony that some of the pie boxes weighed as little as twenty-five pounds depending on the number of pies in a box. There was no evidence as to the weight of the boxes which fell on Keng.
Keng testified that she was on the ladder moving boxes from the top shelf next to the freezer motor when she was called to the deli counter. When she started down the ladder, three boxes fell from the top shelf and hit her on the back. The force of the boxes knocked her off the ladder and she fell, hitting her chest on the cart. Keng stated that she immediately felt pain. She reported her injury, but continued to work the rest of her shift. Keng went to the emergency room about a week later, and again on March 13th. Kroger's Risk Management became involved and made an appointment for Keng to see a physician who they routinely used, Dr. Larry Likover ("Likover"). Keng told Likover that she was in pain, but the doctor concluded that he could not find anything wrong with her and ordered her back to work. While Keng was at work on March 17th, she began shaking. Kroger's employees placed her in a wheelchair and called her mother, who took her home. Keng's mother then called an ambulance to transport Keng to the emergency room. On October 28, 1994, Kroger *886 sent Keng notice that she was on "unauthorized leave of absence." Kroger eventually terminated her.
Dr. John Cianca, a specialist, testified for Keng that she suffered from a sacroiliac joint hypomobility with myofacial pain. Kroger offered Dr. Likover, Dr. Anderson Kant and Dr. Ken Mathis, who all testified that they could find no objective evidence of injury. Kroger's safety manual was also introduced into evidence. The manual indicated that it was company policy that anyone using a ladder was required to keep one hand on the ladder at all times. Additionally, there was evidence that appliances were in existence which would have aided in moving heavy items off of high shelves. The store in question, however, did not have this type of appliance small enough to fit into the freezer.
The jury found that Kroger was negligent because it failed to furnish necessary appliances and/or materials to carry on the work requested of Keng in a proper condition and with reasonable safety, and it also failed to provide adequate help and/or assistance under the circumstances for the performance of required work. Our review of the record shows that there was some evidence from which the jury could have inferred that Kroger was negligent under the above standards. Keng testified that some of the pie boxes were piled three high and were partially hanging over the top shelf. Three of these boxes fell on her. Kroger argues the evidence reflected Keng herself moved the boxes which, in turn, caused the boxes to fall. We disagree. As we understand it, Keng had moved and loaded fifty boxes from the bottom shelves and was beginning to move boxes from the top shelves. She had only moved a few of the boxes from around the freezer fan motor when she was summoned to wait on a customer. There was no evidence that she had moved the actual boxes which struck her in the back. The jury could have inferred that another Kroger employee had previously improperly stacked the boxes, causing the dangerous condition. In addition, there was evidence that not all of the boxes were full of pies. The jury could have concluded that when these boxes were placed near the front of the shelf, it was a foreseeable danger that they would fall if slightly disturbed.
Keng stated that moving pie boxes was not part of her normal duties. The jury could have found negligence in Sweeney's order to do this particular work knowing that Keng was untrained in that area. The jury could also have found negligence in Kroger's failure to adequately inspect the condition of the boxes and/or adequately explain how they could be removed in a safe manner or by failing to ensure that adequate assistance was available. The jury could have determined that Kroger did not furnish adequate lifting equipment and appliances to carry out the task of removing heavy boxes from the top shelf. Although Clarence was initially assigned to help Keng, there was evidence that he was not instructed in the proper manner to assist her. Implicit with safety instructions is the responsibility to see that they are followed. Morgan v. Pool, 641 S.W.2d 370, 373 (Tex.App.Dallas 1982, writ ref'd n.r.e.). A combination of the above factors could reasonably have been viewed by the jury as negligence on the part of Kroger.
Keng could not reach the boxes on the top shelf without a ladder. Kroger's own safety manual required that while using a ladder, an employee must keep one hand on it at all times. Keng argues this indicates a foreseeability of an injury by not following this procedure. We do not agree, however. While it is foreseeable for an injury to occur when it was impossible to hold on to the ladder while removing forty pound boxes from a high shelf, Keng offered no evidence that the accident occurred by the use of the ladder.
Kroger has cited three cases it claims are on point, determinative, and dispositive of its various arguments: 1) lack of foreseeability of the injury; 2) Keng caused the boxes to fall by placing and positioning them; 3) Keng was performing a typical and usual task of any grocery store employee, e.g. moving stock from grocery store shelves; and 4) the ladder itself played no part in producing the injury thus, the violation of the safety rules was not determinative. It cites Werner v. Colwell, 909 S.W.2d 866 (Tex.1995), Great Atlantic & Pac. Tea Co. v. Evans, 142 Tex. 1, *887 175 S.W.2d 249 (1943), and McClish v. R.C. Young Feed & Seed Co., 225 S.W.2d 910 (Tex.Civ.App.Amarillo 1949, writ ref'd) for its proposition that it should not be held liable for Keng's injuries.
In Great Atlantic & Pac. Tea Co., a grocery store employee sued his employer for negligence to recover for a hernia injury allegedly received when he lifted a one-hundred pound sack of potatoes. Great Atlantic & Pac. Tea Co., 175 S.W.2d at 250. The employee claimed that the grocery store failed to provide a co-worker or a mechanical device to assist him in hauling the sacks. Evidence was presented that the plaintiff was employed as a stock boy/assistant manager who had hauled similar sacks of potatoes for several months without incident. Evidence was also presented that his job duties of handling sacks of potatoes were usual and normal and undistinguishable from the potato hauling practices of other grocery stores. Id. The Texas Supreme Court held that, as a matter of law, these facts failed to establish actionable negligence and failed to establish any reasonable foreseeability of harm. Secondly, Kroger points out that the Texas Supreme Court expressly reaffirmed Great Atlantic & Pac. Tea Co. in Werner, 909 S.W.2d at 869. Werner makes it clear, however, that even performing regular duties may be actionable if the job itself is unusual or poses a threat of injury. Id.
In McClish, the plaintiff worked as a laborer at a feed store. McClish, 225 S.W.2d at 911. Approximately one month after he was hired, McClish was removing one hundred pound sacks of feed from a warehouse. He would take the sacks from three stacks of feed and place them on a small handtruck. Another employee operating the handtruck would then move the sacks to a door where the sacks would then be loaded onto a truck. After removing the sacks from the first two stacks, the third stack collapsed and some sacks fell on McClish's back. Id. Because his employer was a nonsubscriber to workers' compensation, he sued his employer under common law. At trial, the plaintiff offered no direct proof that the feed sacks were not properly stacked. Id. at 912. Instead, the plaintiff offered his own testimony based upon his many years of experience in the feed business that if the feed was properly stacked, it would not fall. The trial court granted an instructed verdict and the plaintiff appealed. Id. The Amarillo Court of Appeals affirmed the instructed verdict in favor of the employer based on legally insufficient evidence. Id. at 914. The court properly refused to infer negligence from the mere fact that an accident happened or an injury occurred. The court in affirming the judgment in favor of the employer, found no evidentiary basis to impute liability to the employer, since it was unknown why the sacks fell. Id.
Kroger asserts that these cases show Keng cannot prove actionable negligence because she was injured doing something she routinely does. We do not agree. There was evidence that moving supplies out of the freezer was not normally part of Keng's job. Keng had been working at Kroger in the deli department since September 15, 1991. Before Sweeney's request on February 26, 1994, no one at Kroger had ever asked Keng to move frozen food supplies of this weight or under these conditions. In the instant case, there is evidence that Keng was not doing the same character of work that she had always done. Thus, this case is distinguishable from Werner, Great Atlantic & Pac. Tea Co., and McClish.
Where there is reason to anticipate from the work to be performed and the manner of performance that injury may result to an employee, it is incumbent on the employer to exercise ordinary care to prevent injury. Collins v. Pecos & N.T. Ry. Co., 110 Tex. 577, 212 S.W. 477, 478 (1919); Woodlawn Manufacturing, Inc. v. Robinson, 937 S.W.2d 544, 548 (Tex.App.Texarkana 1996, writ denied). Keng's injury was foreseeable. Foreseeability requires only that the general danger, not the exact sequence of events producing the harm, be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). There is evidence that Keng had never been instructed on how to move frozen supplies. And even Kroger's manager testified that the safest way to remove boxes from the top shelf while using a ladder is to have assistance in doing so. Furthermore, *888 there is evidence that the pie boxes hanging over the shelf posed a foreseeable risk of danger.
Kroger claims the record establishes insufficient evidence that it's conduct proximately caused the damages awarded. We do not agree. Kroger offered only the testimony of Dr. Ken Mathis. Kroger's Risk Management Department sent Keng to Mathis. Mathis generated medical reports paid for by Kroger. On the other hand, Dr. John Christopher Cianca, a licensed physician at Baylor Hospital, testified for Keng. Cianca diagnosed Keng as suffering from mechanical back pain, which may start as a muscular problem and then later deteriorate as time passes. Cianca added that based upon reasonable medical probability, the injuries he diagnosed were caused by the fall or by the boxes striking Keng in the deli freezer at Kroger. Cianca also testified that the accident caused Keng to suffer a sacroiliac joint disfunction with myofacial pain. Cianca further testified that Keng's reported injuries were not faked for "secondary gain." He explained that Keng had a positive "Patrick's test," which is inconsistent with faking and consistent with a sacroiliac joint problem. Her symptoms, Cianca continued, were congruent with his objective findings. We have reviewed the medical records of Dr. Blum, Dr. Swick, Harris County Hospital District, HCA Spring Branch, Dr. Hill, Dr. Kant, Martin Luther King Clinic, and Dr. Cianca, and find the evidence factually sufficient.
Kroger has set forth several ways in which Keng could have caused or avoided the harm that produced her injury. We must view this argument and evidence, however, with the knowledge that they may relate to contributory negligence, the fellow servant doctrine, and/or assumption of the risk defenses statutorily denied Kroger because of its nonsubscriber status. TEX.LAB.CODE ANN. § 406.033(a),(d) (Vernon 1997); W.E. Grace Mfg. Co. v. Arp, 311 S.W.2d 278, 282 (Tex. Civ.App.Dallas 1958, writ ref'd n.r.e.). Kroger's assertions may undermine the sufficiency of the evidence to support the jury's verdict and may also attack Keng's credibility. We agree there was admittedly contradictory evidence regarding whether Kroger provided a safe work environment. But when reviewing the sufficiency of the evidence, we cannot consider possible negligence on Keng's part in determining who or what caused the accident to occur.
When there is conflicting evidence, the jury's decision is generally conclusive. Chemical Express Carriers, Inc. v. Pina, 819 S.W.2d 585, 590 (Tex.App.El Paso 1991, writ denied). As the trier of fact, the jury is the sole judge of the credibility of witnesses and the weight attached to their testimony. Mid-South Bottling Co. v. Cigainero, 799 S.W.2d 385, 389 (Tex.App. Texarkana 1990, writ denied). The jury may also draw inferences from the facts and choose between conflicting inferences. Ramo, Inc. v. English, 500 S.W.2d 461, 467 (Tex.1973). We conclude that conflicting evidence exists in this case. We are not the fact finder, however, and we cannot substitute our judgment for that of the jury. We do not find that the verdict was so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. We overrule Kroger's second issue.
On the first issue presented by Kroger on appeal, it claims that the trial court erred in refusing to submit a comparative responsibility issue to the jury, citing Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 521 (Tex.1995) in support of its proposition. Kroger argues that as a nonsubscriber, this case is not a "workers' compensation case," and they were entitled to benefit from the comparative negligence statutes, thereby limiting any recovery by Keng to the percentage of total damages for which Kroger was responsible. Kroger points out the original Workmen's Compensation Act passed in 1913 provided:
Section 1. In an action to recover damages for personal injuries sustained by an employee in the course of his employment ... it shall not be a defense:
1. That the employee was guilty of contributory negligence; but in such event the damages shall be diminished in the proportion to the amount of negligence attributed to such employee.
*889 Act of April 16, 1913, ch. 179, 1913 Tex.Gen. Laws (repealed 1989). Thus, the original statute, while contributory negligence would not bar a claim, it would reduce a damage award in proportion to the contributory negligence of the Plaintiff. See Memphis Cotton Oil Co. v. Tolbert, 171 S.W. 309, 314 (Tex.Civ. App.Amarillo 1914, writ dism'd).
In 1917, the Texas Legislature amended the Workers' Compensation Act deleting the assessment of proportionate responsibility to determine damages. See Act of March 28, 1917, ch. 103, § 1, P. 270, Tex.Gen.Laws 1917. Under this amendment, common law contributory negligence would no longer be a defense. Instead, the statute read that in an action to recover personal injuries, it was not a defense that "the employee was guilty of contributory negligence." See Id. This would remain the law for 76 years in Texas under the old Act, and as established below, now under the new Act. See TEX.REV.CIV.STAT. ANN. art. 8306, § 1 (repealed by ACTS 1989, 71st Leg., 2d C.S., ch. 1, § 3.03); see also Evans v. Phipps, 152 Tex. 487, 259 S.W.2d 723, 724 (Tex.1953); Potter v. Garner, 407 S.W.2d 537, 538 (Tex.Civ.App.Tyler 1966, writ ref'd n.r.e.).
The Texas Legislature revamped the Workers' Compensation Act, which became effective January 1, 1993. The bar to raising the common law contributory negligence defense was retained under the "new" Act. The statute in effect today and at the time of Keng's alleged injuries provides:
Common-law defenses:
(a) In an action against an employer who does not have workers' compensation insurance coverage to recover damages for personal injuries ... it is not a defense that:
(1) the employee was guilty of contributory negligence.
TEX.LAB.CODE ANN. § 406.033(a) (Vernon 1996). Kroger argues that, as the predecessor statutes before it, the new Act, by its express language, incorporates the now eighty-year-old rule ensuring that an employee's common law contributory negligence does not act to totally bar his or her claim against a nonsubscribing employer. It also opines that the Legislature, since 1917, has likewise been clear that this section which deprives an employer of common law defenses is, in fact, limited to common law defenses. By separate section, the Act states: "Notwithstanding Section 406.033, the cause of action is subject to all defenses available under the common law and the statutes of this state." TEX.LAB.CODE ANN. 5406.034(d) (Vernon 1996); see also ACTS 1917, 35th Leg., p. 269, ch. 103, part 1, § 3a (Vernon 1967). The question before us is the import of the intervening legislative amendments which adopted a comparative statutory negligence scheme, and whether the statutory, not common law, defense of comparative negligence is available to a nonsubscriber in a personal injury case.
In 1973, the Texas Legislature enacted a statutory framework of comparative negligence. See TEX.REV.CIV.STAT.ANN. art. 2212a (repealed 1985). With this statute, the Texas Legislature abolished contributory negligence as an absolute bar to the plaintiff's recovery in negligence causes of action and substituted a doctrine of statutory comparative negligence. Article 2212a provided:
(a) In an action to recover damages for negligence resulting in death or injury to a person or property, contributory negligence does not bar recovery if the contributory negligence is not greater than the negligence of the person or persons against whom recovery is sought.
TEX.REV.CIV.STAT.ANN. art. 2212a (repealed 1985). The Legislature, with this comparative negligence scheme, alleviated the longstanding and harsh common law rule wherein any negligence of a plaintiff would act to bar his or her recovery. See Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex.1975). In 1987, the Texas Legislature modified the comparative negligence scheme and replaced it with a comparative responsibility. The statute entitled "Comparative Responsibility" provided, in pertinent part:
(a) In an action to recover damages for negligence resulting in personal injury, property damage, or death ... a claimant may recover damages only if his *890 percentage of responsibility is less than or equal to 50 percent.
See TEX.CIV.PRAC. & REM.CODE ANN. § 33.001 (Vernon Supp.1988) amended by ACTS 1995, 74th Leg., ch. 136, § 1.[1] In 1995, the Texas Legislature amended the comparative responsibility scheme enacting what is currently the law in Texas, proportionate responsibility. See TEX.CIV.PRAC. & REM.CODE § 33.001 (Vernon 1997). The statute now provides, "In an action to which this chapter applies, a claimant may not recover damages if his percentage of responsibility is greater than 50 percent." Id.
Kroger requests that this Court hold that the Texas Legislature revived the defense of contributory negligence for nonsubscribers when the comparative responsibility statute was passed in 1973. To do this, we would be required to determine if there exists a conflict between section 33.001 of the Civil Practice and Remedies Code, and section 406.003(a) of the Texas Labor Code.
When construing a statute, courts use the ordinary meaning of terms unless the Legislature has provided a definition. TEX. GOV'T CODE ANN. § 311.011 (Vernon 1988) (Texas Code Construction Act); Hopkins v. Spring I.S.D., 736 S.W.2d 617, 619 (Tex.1987). The ultimate goal in any statutory construction is to give effect to the intent of the Legislature to the greatest degree possible. TEX. GOV'T CODE ANN. §§ 311.021, 311.023 (Vernon 1988).
We begin with the premise that the Texas Workers' Compensation Act is to be construed liberally in favor of injured workmen and it is improper to supply by implication restrictions on employee's rights which are not found in the language of the statute. Miears v. Industrial Acc. Bd., 149 Tex. 270, 232 S.W.2d 671, 675 (1950). Strained or narrow construction of the workers' compensation law that deny the employee benefits are improper. See Pacific Indemnity Co. v. Woodall, 253 S.W.2d 490, 492 (Tex.Civ.App.Fort Worth 1952, writ ref'd). Courts should avoid construing the Texas Workers' Compensation Act, or any part thereof, in a manner which results in absurd consequences. Gonzalez v. CIGNA Ins. Co. of Tex., 924 S.W.2d 183, 186 (Tex.App.San Antonio 1996, writ denied) (emphasis added).
Section 406.033 of the Texas Labor Code provides, in pertinent part:
(a) In an action against an employer who does not have workers' compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee.
(b) This section does not reinstate or otherwise effect the availability of defenses at common law, including the defenses described in Subsection (a).
* * *
(d) In an action described in Subsection (a) against an employer who does not have workers' compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment.
TEX.LAB.CODE ANN. § 406.033 (Vernon Supp. 1994). Kroger not only argues that the Legislature nullified section 406.033(a),[2] but that it did so in 1973. It further contends that the instant case is not an action to collect workers' compensation under the statute and *891 that, consequently, Chapter 33 of the Texas Civil Practices & Remedies Code applies to Keng's case. TEX.CIV.PRAC. & REM.CODE ANN. § 33.002(c)(1) (Vernon 1997) reads: "(c) this chapter does not apply to: (1) an action to collect workers' compensation benefits under the workers' compensation laws of this state. (Subtitle A, Title 5, Labor Code)." Section 406.033, entitled "Common Law Defenses: Burden of Proof", however, is part of Subtitle A, Title 5, of the Texas Labor Code.
The phrase "workers' compensation benefits" is not expressly defined in the comparative responsibility statute. The Workers' Compensation Act, however, does define "benefit" as a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury. TEX.LAB. CODE ANN. § 401.011(5) (Vernon's 1996). We conclude that when an employee files suit against a nonsubscribing employer, that suit is "an action to collect benefits [and damages] under the workers' compensation laws of Texas." Specifically, it is an action under section 406.033. There are two principle reasons for this interpretation. First, the employee has a statutory burden to prove the negligence of the employer. TEX.LAB.CODE ANN. § 406.033(d). Thus, where the employee is the sole cause of injury, the employee cannot recover pursuant to statute, even though the defense of contributory negligence is unavailable to the employer. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367 (1948). Consequently, an employee's negligence action against his nonsubscribing employer is brought "under the workers' compensation laws of Texas," not only common law. It is therefore subject to the exemption language of Section 33.002(c)(1) of the Texas Civil Practice and Remedies Code. Secondly, the employee is statutorily empowered to prosecute an action for personal injuries free of common law defenses against an employer who is eligible to subscribe under workers' compensation law, but chooses not to subscribe. See TEX.LAB.CODE ANN. § 406.033(a). It is not true that a negligence action against a nonsubscribing employer is governed solely by common law. It is "by the terms of [Texas Workers' Compensation] law" that an employer is deprived of the defenses of contributory negligence, assumed risk, and fellow servant negligence. Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977, 978 (1947). In short, all employers are governed by the Texas Workers' Compensation Act, whether they subscribe or not. See TEX.LAB.CODE ANN. § 406.004.
Section 406.033 of the Labor Code was intended to impose a penalty on any employer who elected not to carry workers' compensation insurance. See Gary Thornton, Litigation Involving Non-Subscribers to Workers' Compensation Insurance, 54 Tex. B.J. 31 (1991). Contributory negligence, assumed risk, and fellow servant defenses are statutorily abolished. TEX.LAB.CODE ANN. § 406.033(a) (Vernon 1996). Thus, the express intent of the Legislature was to deprive a non-subscribing employer of these defenses in a workers' compensation case. As the Texas Supreme Court has stated,
Although employers are allowed to opt out of the [workers' compensation] system, [that is, not subscribe, the Texas Workers' Compensation] Act discouraged this choice by abolishing all the traditional common law defenses for non-subscribers.
Garcia, 893 S.W.2d at 511 (emphasis added).
Furthermore, the Texas Legislature in amending the Workers' Compensation Act in 1989, had the opportunity to remove the penalty provisions of section 406.033, but left them intact. To interpret the comparative responsibility statute of 1973 as an attempt by the Texas Legislature to indirectly repeal or limit the penalty provisions of the Workers' Compensation Act, as Kroger so posits, would be to ignore the language of both statutes. Kroger's interpretation removes the incentive for employers to subscribe to the Workers' Compensation Act.
There is very little caselaw on this issue. However, in Woodlawn, the Texarkana court reaffirmed the view that an employer is prohibited from asserting common law defenses of contributory negligence, assumption of risk, and fellow servant negligence in an employee's action for injuries sustained on the job where the employer was not a subscriber under workers' compensation law. Woodlawn, 937 S.W.2d at 547-48. The *892 Woodlawn court held that these defenses were statutorily denied to the employer. Id. at 549. Although comparative responsibility was in effect at the time this case was decided, the court did not submit a jury issue on comparative responsibility. And in Torres v. Caterpillar, 928 S.W.2d 233 (Tex.App.San Antonio 1996, writ denied), the San Antonio court addressed the inapplicability of the comparative responsibility statute to a nonsubscriber case under the Workers' Compensation Act. The court stated:
Since [the Defendant] was a non-subscribing employer, contributory negligence was not a defense, and, therefore, the trial court properly disregarded the percentage causation the jury attributed to [the employee's] negligence in awarding damages [against the employer].
Id. at 237 n. 3 (emphasis added).
Kroger reasons that there is legislative authority for a comparative negligence question in the jury charge, even though "common law" contributory negligence is barred as a defense under the Labor Code. But in order for the comparative responsibility statute to apply to any case, the defendant must offer evidence and establish that the plaintiffs negligence proximately caused the plaintiffs injuries. Howard v. Bachman, 524 S.W.2d 414, 416 (Tex.Civ.App.Eastland 1975, no writ). In Bachman, the court of appeals held that the plaintiffs negligence must have been a proximate cause of the accident in question in order to apply the comparative statute. Id. In a case such as the one before us, however, the defendant cannot prove contributory negligence as a matter of law. See TEX.LAB.CODE § 406.033(a). So a comparative responsibility issue submitted in a jury charge would always yield an immaterial finding since, as a matter of law, the plaintiff cannot be found contributorily negligent. Further, this explains the exception expressly carved out for workers' compensation cases in the comparative statute. Section 406.033(a) of the Labor Code renders immaterial any comparative finding against the plaintiff in a nonsubscriber case because there can be no contributory negligence to serve as a predicate for the comparative question.
We further conclude that an attempt to apply the comparative statute also offends the statutory bar against the common law defense of assumption of risk. Conspicuously, the Texas Legislature retained the "assumption of risk" terminology in the 1995 amendment to the Texas Labor Code, even though the doctrine of "assumption of risk" was abandoned by the Texas Supreme Court in 1975. See Farley, 529 S.W.2d at 758. Like the defense of contributory negligence, the defense of "assumed risk" was absorbed by the law of comparative fault. The fact finder now determines the reasonableness of an actor's conduct in confronting risk by using comparative responsibility principles. Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 717-18 (Tex.App.San Antonio 1994, writ denied). Consequently, interpretation of the comparative responsibility statute which would apply it to a nonsubscriber case would permit employers to put on evidence of the "reasonableness of the actor's conduct in confronting risks on the job." Such evidence is not admissible under section 406.033(a)(2) of the Labor Code.
We next respond to Kroger's assertion that Garcia stands for the proposition that a fifty percent bar rule applies to employees who bring a negligence action against a nonsubscribing employer. We disagree. In Garcia, the Texas Supreme Court addressed the issue of whether the "new" Texas Workers' Compensation Act facially violated the Texas Constitution's guarantees of open courts, due course of law, equal protection, jury trial, and obligation of contract. Garcia, 893 S.W.2d at 510. The Texas Supreme Court reversed the judgment of the Court of Appeals and upheld the constitutionality of the new Act, sections 401.001, et seq. of the Labor Code.
In considering the plaintiffs open courts challenge, the Texas Supreme Court compared the current statute to the common law remedy without regard to the previous statute. Id. at 521. Because the open courts provision in the Texas Constitution guarantees that a common law remedy will not be unreasonably abridged, the Court necessarily compared the new Texas Workers' Compensation Act with remedies available under *893 common law. Id. To make such a comparison, the court first discussed an employee's burden under the common law as if the Texas Workers' Compensation Act was not in effect. In keeping with the proper analysis of an open courts challenge to any statute, the court appropriately discussed an injured worker's burden in a negligence action against his employer without the protection of TEX.LAB.CODE § 406.033. Logically, common law defenses would be available to an employer if there were no Act in place. So, the Garcia court entertained a hypothetical scenario for the sole purpose of performing an open courts challenge analysis. The Court was not setting forth new policy regarding the interpretation of the Texas Workers' Compensation Act. This conclusion is borne out by the remarks of the Court:
To recover damages at common law, an injured worker was required not only to establish that the employer's negligence proximately caused the injury, but also to avoid the defenses of contributory negligence, assumption of risk, and fellow servant.
Garcia, 893 S.W.2d at 521. Obviously, an injured worker does not need to avoid the defenses of contributory negligence, assumption of risk, or fellow servant under TEX.LAB. CODE § 406.033. We conclude, therefore, that the Garcia court was merely entertaining a fiction, that is, considering remedies available to an injured worker under the common law without regard to the Texas Workers' Compensation Act.
Even if our evaluation of Garcia is incorrect, however, we still disagree that the court's holding is determinative of the issue before us. The language was not essential to the outcome of the case, nor did comparative negligence constitute even a minor issue in that case. The brief statement that an employee cannot recover if he is more than 50 percent negligent was clearly dicta and noncontrolling.[3]
In addition to our previous analysis, we conclude that Kroger's interpretation of the comparative responsibility statute completely ignores the legislative intent of section 406.033. We conclude that the Texas Legislature did not, in such a manner, back-door the rebirth of contributory negligence in nonsubscriber cases brought under the workers' compensation statute.
The trial court in this case did not err in refusing to submit the comparative responsibility issue to the jury. Kroger's first issue is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] Because Keng's alleged injury occurred on February 27, 1994, the applicable statute is the comparative responsibility scheme.
[2] Since Sonja Keng filed her petition against Kroger in January 1995, the comparative responsibility statute in effect at that time directed the reader to TEX.REV.CIV.STAT.ANN. art. 8306, et seq . However, by January 1995, article 8306, et seq., had already been repealed and recodified as TEX. LAB.CODE ANN. §§ 401.001 et seq. Regardless of whether this Court uses the 1987 comparative responsibility statute or the 1995 amendment, Appellee Keng's arguments apply equally to either statute.
[3] The Amarillo Court of Appeals has "followed" Garcia's holding that comparative responsibility is an available defense for defendants in a nonsubscriber case. Byrd v. Central Freight Lines, Inc., No. 07-96-0311-CV, 1998 Tex.App. LEXIS 3895, ___ S.W.2d ___ (Amarillo June 30, 1998, no writ). We decline to do so for the reasons stated above. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2442964/ | 818 S.W.2d 790 (1991)
Jeffery CALDWELL, Appellant,
v.
The STATE of Texas, Appellee.
No. 70846.
Court of Criminal Appeals of Texas, En Banc.
October 16, 1991.
*792 Lawrence B. Mitchell, on appeal only, Dallas, for appellant.
John Vance, Dist. Atty., and Patricia Poppoff Noble, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
CAMPBELL, Justice.
Appellant, Jeffery Caldwell, was convicted of capital murder. Tex.Penal Code § 19.03(a)(6). At the punishment phase of Appellant's trial, the jury answered affirmatively the three special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure.[1] The trial judge then sentenced Appellant to death as required by Article 37.071(e). Direct appeal to this court is automatic. Tex.Code Crim.Proc. art. 37.071(h).
When considered in the light most favorable to the verdict of the jury, the record in this case reveals the following facts. On Monday evening, July 25, 1988, police investigators discovered the partially decomposed bodies of Henry Porter Caldwell, Jr., his wife Gwendolyn Caldwell, and their daughter Kimberly Caldwell wrapped in blankets and stuffed into a camper-trailer parked behind the family's South Dallas home. Autopsies later revealed that Henry and Gwendolyn were each stabbed once through the heart; Kimberly suffered two stab wounds to the chest, one of which penetrated her heart. In addition, all three victims had been brutally beaten about the head with a blunt instrument.
Appellant was arrested for the murders the following morning and properly advised of his Miranda rights.[2] Later that day, Appellant made a voluntary statement to police in which he stated that he had accidentally stabbed to death his sister and *793 parents at approximately 6:00 a.m., Saturday, July 23. Appellant stated that the stabbings occurred after a violent confrontation with his father over his father's refusal to loan Appellant money to purchase insulin. Appellant's original confession, however, failed to account for the severe head injuries of all three victims and the fact that his sister had been stabbed twice. Furthermore, at trial there was evidence that, subsequent to his original confession, Appellant related several additional and conflicting versions of the events to relatives and others.
In his first point of error, Appellant argues that the trial court committed error in denying his request for additional time to voir dire prospective juror Theresa Hearn on special issue number three. See Tex. Code Crim.Proc. art. 37.071(b)(3). During Appellant's voir dire of Hearn, he thrice unsuccessfully challenged the venireperson for cause. When Appellant was notified by the trial judge that his time for voir dire had expired, the following colloquy occurred:
DEFENSE COUNSEL: Your Honor, we request some additional time to talk to this juror further.
THE COURT: Your request is denied.
DEFENSE COUNSEL: Particularly about special issue number three.
THE COURT: Ms. Hearn, will you step in the first door, and I will call you shortly.
THE COURT: What says the State in regard to juror Hearn?
THE STATE: Take her, Judge.
THE COURT: What says the defense?
DEFENSE COUNSEL: We're forced to use peremptory challenge number eight.
Both parties in this case concedeand the record so-reflectsthat the voir dire examination was limited to thirty minutes for each side per individual venireperson. In his brief, Appellant concedes further that, "Certainly the record does not indicate that counsel for appellant at any time save and except as referred to herein objected to this limitation." Thus, Appellant does not complain of the trial judge's general time limitations on the voir dire; rather, he contends only that the trial judge erred in not allowing Appellant more time to examine venireperson Hearn on special issue three.
The control of the voir dire examination is within the sound discretion of the trial judge, and it is well-settled that the trial judge's discretionary authority extends to imposing reasonable limitations on the time for which counsel may question the jury panel. Allridge v. State, 762 S.W.2d 146 (Tex.Cr.App.1988), cert, denied, 489 U.S. 1040, 109 S. Ct. 1176, 103 L. Ed. 2d 238 (1989); Abron v. State, 523 S.W.2d 405, 408 (Tex.Cr.App.1975); see also Adams v. State, 577 S.W.2d 717, 724 (Tex.Cr.App. 1979), modified, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980). The discretion of the trial judge regarding control of the voir dire is not limitless, however; thus, the benefits achieved by accelerating the often lengthy voir dire process "must never be attained at the risk of denying to a party on trial a substantial right." Smith v. State, 703 S.W.2d 641, 645 (Tex.Cr.App. 1985).
When an appellant challenges a trial judge's limitation on the voir dire process, the reviewing court must analyze the claim under an abuse of discretion standard, the focus of which is whether the appellant proffered a proper question concerning a proper area of inquiry. Cockrum v. State, 758 S.W.2d 577, 584 (Tex.Cr. App.1988), cert, denied, 489 U.S. 1072, 109 S. Ct. 1358, 103 L. Ed. 2d 825 (1989) at 584; Allridge, supra at 163. If a proper question is disallowed, harm to the appellant is presumed because he has been denied the ability to intelligently exercise his peremptory strikes.[3]Smith v. State, 703 S.W.2d 641, 643 (Tex.Cr.App.1985); Allridge, supra at 163; Cockrum, supra at 584. Thus, in order to decide if the trial judge erred by disallowing an appellant's voir dire request, the reviewing court must first determine if the appellant proffered a proper question.
*794 A "proper" question is one that seeks to discover a venireperson's views on an issue applicable to the case. Guerra v. State, 771 S.W.2d 453, 468 (Tex.Cr.App.1988), cert, denied, 492 U.S. 925, 109 S. Ct. 3260, 106 L. Ed. 2d 606 (1989). However, a voir dire question that is so broad in nature as to constitute a "global fishing expedition" is not proper and may be prevented by the trial judge. Smith v. State, 703 S.W.2d 641, 645 (Tex.Cr.App.1985). In the case at bar, Appellant merely asked to question the venireperson on special issue three, without narrowing the scope of his proposed inquiry. Potentially, a wide range of specific questionsboth proper and impropercould have been asked within this general subject area.[4] Given the broad nature of this request, it is impossible for this Court to determine whether the inquiry of Appellant would have been properi.e., both appropriately phrased and relevant. Unable to make this determination, this Court cannot find that the trial court abused its discretion in refusing Appellant's request for additional time.
Furthermore, even assuming Appellant's request to question Hearn on issue three was not overly broad, we nonetheless find no reversible error because Appellant never presented the trial judge with one or more specific questions on which she could make a ruling. In Cockrum v. State, supra at 584, we held:
Because this Court applies the abuse of discretion standard, set out above, for deciding appeals concerning the manner of voir dire, it is essential that the record present this Court with a question which the trial judge has not allowed to be answered. If counsel refrains, for what ever [sic] reason, from asking a question, the judge is denied the opportunity to make a ruling. Thus, we are unable to review the correctness of a ruling which was never made. For appellant to have a cognizable point of error, the record must reflect a ruling which appellant wishes to challenge. See Tex.R.App.Pro. 52(a).
As this Court's decision in Cockrum makes apparent, there must be a question before there can be a proper question. In the case-at-bar, when Appellant's time for voir dire expired, he merely requested additional time, which the trial judge denied. Appellant's next statement simply informed the judge of the general subject on which Appellant wanted to question the venireperson. Thus, Appellant failed to preserve a reviewable error in two respects: first, he never presented the trial court with a specific question; second, he failed to obtain an adverse ruling as to that question. Having never framed a question, Appellant has preserved nothing for this Court to review. Consequently, we must leave the trial judge's ruling undisturbed. Point of error number one is overruled.
Appellant's second point of error alleges the trial court erred in excusing prospective juror Bert Chauveaux. The State's voir dire revealed that, if the jury found the defendant guilty of capital murder, the venireperson would then automatically answer yes to special issue number one at the punishment stage:
Q. [BY THE STATE]:
Back to question number one. I want to make sure I understand the answer you gave me previously on that. You told me that you could not presume the answer to number one to be no, that if you found someone intentionally taking two lives you would presume the answer to that to be yes.
A. Yes.
Q. You would automatically answer that question yes?
A. Yes.
Q. Are you sure about?
A. I am sure about that.
Q. This man here is an expert at words. I want to know if you flip-flop on me. I want to know where you are coming from.
A. I am sure about that. The answer automatically would be yes that there was deliberation if I foundif the jury *795 found the defendant guilty of what this indictment says.
At this point, the State submitted the venireperson for cause. Appellant objected to the exclusion of Chauveaux on the ground that his testimony did not demonstrate a bias or prejudice against any phase of the law upon which the State was entitled to rely for conviction or punishment. Tex.Code Crim.Proc. art. 35.16(b)3. The trial court overruled Appellant's objection and excused the venireperson.
Appellant's first argument is that the trial court erred as a matter of law in excusing the venireperson because his voir dire testimony was favorable to the State and, therefore, the State had no basis upon which to challenge the venireperson for cause under Article 35.16(b)3.[5] We disagree. In Gardner v. State, 730 S.W.2d 675, 680 (Tex.Cr.App.1987), cert, denied, 484 U.S. 905, 108 S. Ct. 248, 98 L. Ed. 2d 206 (1987) (emphasis added), we stated:
More to the point is the question whether a finding of guilty would "automatically" dictate a result in the mind of the venireman as to special issues, without consideration of evidence brought forward at the punishment stage of trial, or further consideration of the guilt evidence as it relates particularly to resolution of those issues. For only upon manifesting an inability, once the issue of guilt has been resolved against the accused, to reconsider guilt evidence in the particular context of special issues, has a venireman demonstrated himself unable objectively to follow the law. Such a venireman would certainly be subject to a State's challenge for cause, for clearly this is a "phase of the law upon which the State is entitled to rely for ... punishment."
The rationale for our holding in Gardner rested on the fundamental premise that the State's role in our adjudicative system is more than mere advocate:
The State's interest is in fair and impartial jurors, in accord with our legal system's basic tenet to insure that every defendant is accorded a fair and impartial trial. The State seeks, or should seek, to uphold the integrity of the jury system. Therefore, the State is permitted to challenge a juror who cannot be fair and impartial....
Nethery v. State, 692 S.W.2d 686, 691 (Tex. Cr.App.1985), cert, denied, 474 U.S. 1110, 106 S. Ct. 897, 88 L. Ed. 2d 931 (1986).
When venireperson Chauveaux's testimony revealed he was unable to reconsider the guilt evidence for purposes of answering the special issues at the punishment phase, the State had the right to challenge the venireperson for cause. Once challenged, it was within the purview of the trial court to sustain or overrule the challenge. As a matter of law, the trial court committed no error in excusing the venireperson.
Appellant's second argument is that, based on the facts of this case, the trial court abused its discretion in excusing venireperson Chauveaux for cause. Previous decisions of this Court have established that the appropriate analysis to be used by the trial court in disqualifying potential jurors is whether their views would prevent or substantially impair their duties as jurors to act in accordance with the trial judge's instructions and the oaths taken by the jury. DeBlanc v. State, 799 S.W.2d 701, 716 (Tex.Cr.App.1990), cert, denied, ___ U.S.___, 111 S. Ct. 2912, 115 L. Ed. 2d 1075 (1991); Bell v. State, 724 S.W.2d 780, 794 (Tex.Cr.App.1986), cert, denied, 479 U.S. 1046, 107 S. Ct. 910, 93 L. Ed. 2d 860 (1987).
On appeal, we recognize that great deference must be given to the trial judge, who was in the best position to witness the responses of the prospective jurors and to *796 evaluate their demeanor. In Wainwright v. Witt, 469 U.S. 412, 424-28,105 S.Ct. 844, 852-54, 83 L. Ed. 2d 841 (1985), the United States Supreme Court held:
[Determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of catechism. What common sense should have realized experience has proved: many veniremen cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully apply the law.... [Djeference must be paid to the trial judge who sees and hears the juror....[T]he question whether a venireperson is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireperson's state of mind. We also noted that such a finding is based upon a determination of demeanor and credibility that are peculiarly within the trial court's province. Such determinations are entitled to deference even on direct review.
See also, DeBlanc v. State, supra at 717. We will reverse a trial court's ruling on these issues only when the record demonstrates a clear abuse of discretion. Ransom v. State, 789 S.W.2d 572, 582 (Tex.Cr. App.1989), cert, denied, ___U.S.___, 110 S. Ct. 3255, 111 L. Ed. 2d 765 (1990).
In deciding whether the trial court clearly abused its discretion by excusing venireperson Chauveaux, we observe the specific facts of this case. The testimony excerpted above demonstrates the venireperson unambiguously stated he would automatically answer special issue number one "yes" in any case where it was shown the defendant intentionally killed more than one person in the same criminal transaction, regardless of the underlying circumstances. This statement followed a lengthy exhortation by the trial judge on the need for the jury to be able to reconsider the evidence adduced at trialas well as any additional evidence brought forward at the punishment stagebefore answering the special issues. Venireperson Chauveaux testified he was incapable of following the trial judge's instruction. We find the venireperson's admitted inability to consider afresh the evidence in answering special issue number one demonstrated a bias against the law sufficient to warrant his exclusion by the trial judge. Having found an adequate basis in the record to support the trial judge's decision to excuse venireperson Chauveaux, we find no clear abuse of discretion. Point two is overruled.
Appellant's third point of error states that the trial judge committed reversible error when she sustained the State's challenge for cause of venireperson Robert Hacker. The State challenged the venireperson after his testimony revealed he would require more evidence than one eyewitness to convict a defendant of murder:
Q. [BY THE STATE]: I need a definite answer from you. You say you think you need more than one [witness].
A. I would need more than one.
Q. Is there any equivocation in your mind on that?
A. No, sir.
Q. Lawyers are great at talking people in a position and I want to make sure I didn't talk you into this position.
A. No.
* * * * * *
Q. You understand what I am talking about, that even if you heard one eyewitness and you believed the witness beyond a reasonable doubt and that eyewitness' testimony proves the indictment beyond a reasonable doubt, you would still require additional evidence before you would return a verdict of guilty?
A. Yes.
Q. Any question about that?
A. No.
* * * * * *
Q. [BY DEFENSE COUNSEL]: Would you really not be able toare you saying *797 that under no circumstance would you be able to base a verdict on the testimony of one witness?
A. No.
Q. Would it not depend on the quality of the testimony of that one witness and the credibility of that one witness?
A. No.
Q. What are you telling me?
A. That I would require more evidence than one witness.
Appellant contends that the trial judge's dismissal of venireperson Hacker was based on a nonexistent "one eyewitness rule" and, in addition, was an impermissible attempt by the State to disqualify the juror based on a particular fact situation. We reject both of Appellant's contentions.
In Barnard v. State, 730 S.W.2d 703, 712-14 (Tex.Cr.App.1987), cert, denied, 485 U.S. 929, 108 S. Ct. 1098, 99 L. Ed. 2d 261 (1988), we held that the trial judge properly excused a venireperson who stated unequivocally, inter alia, that he could not convict the defendant of capital murder based solely on circumstantial evidence with no eyewitnesses. Similarly, in Demouchette v. State, 731 S.W.2d 75, 82-83 (Tex.Cr.App.1986), cert, denied, 482 U.S. 920,107 S.Ct. 3197, 96 L. Ed. 2d 685 (1987), a capital murder case, we held that a venireperson's statement that he could not convict the defendant solely based on circumstantial evidence was sufficient to sustain the State's challenge for cause. We have also held that a venireperson who testified he would require eyewitness testimony to convict "was thus excludable under Art. 35.16(b)(3), in that he had a bias or prejudice against an aspect of the law upon which the State was entitled to rely." Marquez v. State, 725 S.W.2d 217, 238 (Tex.Cr.App.1987), cert, denied, 484 U.S. 872, 108 S. Ct. 201, 98 L. Ed. 2d 152 (1987).
It is clear that the State's challenge of venireperson Hacker was not premised on a "one eyewitness rule," as such. Rather, it was founded solidly on Article 35.16(b)3, in that the venireperson's testimony demonstrated a bias against a phase of the law upon which the State was entitled to rely. Stated somewhat differently, the venireperson was properly challengeable for cause since he would have held the State to a higher burden of proof than that required by law. To force the State to prove its case with more than one eyewitness is an even greater burden on the State than was extant in Barnard or Demouchette, and such a sentiment clearly subjected the venireperson to a challenge for cause.
Appellant alternatively contends that the questioning of the venireperson was an improper attempt to commit the venireperson to a specific fact situation i.e., that the State would only offer one eyewitness. We disagree. The scope of the prosecutor's questioning was appropriate, regardless of whether the State ultimately offered the testimony of more than one eyewitness at trial. In Barnard, supra, we sustained the exclusion for cause of a venireperson on the ground that he could not convict solely on the basis of circumstantial evidence; this notwithstanding the fact that, at trial, the State brought forth an eyewitness to the murder. We find the trial judge committed no error in sustaining the State's challenge for cause of venireperson Hacker. Point of error three is overruled.
Appellant's fourth, fifth, and seventh points of error argue that the trial judge erred in refusing to instruct the jury as to the definitions of the terms "deliberately," "probability," and "criminal acts of violence," respectively, as used in the special punishment issues. We disagree.
Article 3.01 of the Texas Code of Criminal Procedure provides: "All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined." This article applies to the terms "deliberately," "probability," and "criminal acts of violence." King v. State, 553 S.W.2d 105, 107 (Tex.Cr.App.1977), cert, denied, 434 U.S. 1088, 98 S. Ct. 1284, 55 L. Ed. 2d 793 (1978); see also, e.g., DeLuna v. State, 711 S.W.2d 44, 47 (Tex.Cr.App. 1986), cert, denied, 493 U.S. 900, 110 S. Ct. 259, 107 L. Ed. 2d 208 (1989) (holding that it is "well-settled" that neither "deliberately" nor "a probability" need be defined in the court's charge to the jury); Adams v. *798 State, 577 S.W.2d 717, 730 (Tex.Cr.App. 1979), modified, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980) (no definition of "criminal acts of violence" need be given to jury). Moreover, a trial judge's refusal to define these terms poses no constitutional problems. Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976) (affirming the constitutional validity of article 37.071 as worded, and without reference to special definitions).
While we cannot say that a definition by the trial judge of one or more of these terms would not have been helpful to the jury, in the absence of statutory authority requiring such definitions, and in light of the manifold precedent holding that no definitions are required as a matter of law, we decline Appellant's invitation to re-enter these murky waters. Appellant's fourth, fifth, and seventh points of error are overruled.
In his sixth point of error, Appellant argues the trial judge committed error in denying Appellant's special requested instruction regarding the use of the term "society" as set forth in Article 37.071(b)(2) of the Texas Code of Criminal Procedure.[6] Appellant's rationale for this assertion is that, because the jury was instructed to disregard any consideration of parole, its consideration with regard to Appellant's continuing threat to society should have been necessarily limited to the "society" that exists within the penal system of the State of Texas. Appellant contends that the trial judge's failure to include the instruction impermissibly allowed the jury to determine whether Appellant would be a continuing threat to society in general, as opposed to the society within the penitentiary system where the defendant was to be incarcerated. Appellant's authority for this novel proposition is our decision in Raugeau v. State, 738 S.W.2d 651, 660 (Tex.Cr.App.1987), cert, denied, 485 U.S. 1029, 108 S. Ct. 1586, 99 L. Ed. 2d 901 (1988), from which Appellant cites the following passage:
[I]n deciding whether to answer the second special issue in the negative the jury would clearly focus its attention on the "society" that would exist for the defendant and that "society" would be the "society" that is within the Department of Corrections.
As noted above, Article 3.01 of the Texas Code of Criminal Procedure provides that, unless specifically defined, all words and phrases used in the Code are to be construed as normally accepted in common language. In King v. State, supra at 107, we held that the phrase "continuing threat to society," as used in Article 37.071(b)(2), required no special definition in the charge to the jury at the punishment stage of a capital murder trial. In Rougeau, supra at 660, we noted that the jury was free to give the term "society" its ordinarily accepted meaning in common language. We further noted that "society" is a term that is usually dependent on the context in which it is used. Id.
We reject Appellant's assertion that a special instruction is needed to apprise the jury of the context within which it should define the term "society." In Rougeau, we noted that during its consideration of special issue number two, "the jury would clearly focus its attention on the society... within the Department of Corrections." Id. (emphasis supplied). Consequently, the *799 jury is fully able to answer special issue number two in a fair and unprejudiced manner without reference to a special instruction. Point of error number six is overruled.
Appellant argues in point of error number eight that the trial judge erred in refusing his requested instruction concerning expert testimony on future dangerousness based on a hypothetical question. Appellant concedes that the expert testimony regarding the hypothetical question was admissible[7] but contends the trial court erred by not properly instructing the jury regarding (1) the jury's duty to disregard the testimony if there was a sufficient discrepancy between the evidence and the hypothetical question; and (2) the reliability and credibility of the expert's testimony. Appellant cites this Court to no relevant authority in support of this point of error.
Article 37.071(c) of the Texas Code of Criminal Procedure provides that, "The state must prove each issue submitted [under 37.071(b)] beyond a reasonable doubt...." Upon review, we find that the trial court's charge sufficiently instructed the jury regarding the State's burden of proof, with regard to all three special issues.[8]O'Bryan v. Estelle, 714 F.2d 365, 387 (5th Cir.1983), cert, denied, 465 U.S. 1013, 104 S. Ct. 1015, 79 L. Ed. 2d 245 (1984) (holding that a charge instructing the jury that the State bore burden of proving defendant's future dangerousness beyond a reasonable doubt satisfied constitutional requirements).
Moreover, we have repeatedly held that it is not proper for a trial judge to singleout certain testimony and comment on it via a special instruction to the jury, as such an instruction constitutes an impermissible comment on the weight of the evidence. For example, in Laws v. State, 549 S.W.2d 738, 740 (Tex.Cr.App.1977), we held that the trial judge did not err in refusing to submit an instruction concerning the jury's duty to acquit if it had a reasonable doubt that the defendant was mistakenly identified, as such instruction would have singled-out a specific part of testimony. Similarly, in Chambers v. State, 700 S.W.2d 597, 599 (Tex.Cr.App.1985), we held that the trial judge properly refused to instruct the jury on the weight to give deposition testimony, because such an instruction would have been an impermissible comment on the weight of the evidence. See also, Shippy v. State, 556 S.W.2d 246, 251 (Tex.Cr.App.1977), cert, denied, 434 U.S. 935, 98 S. Ct. 422, 54 L. Ed. 2d 294 (1977). The trial judge's general instruction regarding the appropriate standard by which the jury was to weigh the testimony of the State's witnesses was adequate. Point of error number eight is overruled.
In his ninth, and final, point of error, Appellant argues that the trial judge erred in failing to grant a mistrial on the grounds that the comment of the State during final argument at the guilt phase of the trial violated the provisions of Article 38.08 of the Texas Code of Criminal Procedure [9] and the instruction to disregard did not cure the harm. The portions of the State's argument relevant to Appellant's point of error are as follows:
*800 [BY THE STATE]: You have had a chance to sit here this whole trial, listen to the evidence, look at the demeanor of the witnesses on the stand. And you have had chance [sic] to look at everything. See any remorse in this courtroom other than comes from the
[DEFENSE COUNSEL]: Objection, Your Honor, that's a direct comment on the defendant's failure to testify.
THE COURT: Overruled.
[DEFENSE COUNSEL]: Note our exception.
At the conclusion of the State's argument, the trial judge reversed, sua sponte, her earlier ruling on Appellant's objection:
THE COURT: Mr. Lollar, your first objection is sustained, and the jury is instructed to disregard any comment by the prosecution regarding what the defendant may or may not have shown during the trial and in the courtroom.
In Dickinson v. State, 685 S.W.2d 320, 323 (Tex.Cr.App.1984), we set forth the criteria to be used in assessing whether a prosecutorial comment violates Article 38.-08:
It is now well settled in this State that for the argument or comment of the prosecuting attorney to offend against Art. 38.08, supra, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the accused's failure to testify must be a necessary one. It is not sufficient that the language used might be construed as an implied or indirect allusion thereto. The test employed is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify. Of course, in applying this test, the facts and circumstances of each case must be analyzed to determine whether the language used was of such character.
In applying the Dickinson standard, the objectionable comment must be analyzed from the standpoint of the jury. Appellant suggests that the jury would have interpreted the comment as an impermissible reference to the Appellant's nontestimonial demeanor. That is certainly one possible interpretation. And in a case such as this one, where the defendant has invoked his privilege against self-incrimination, a comment concerning his nontestimonial in-court demeanor would have been a manifest violation of that right. Dickinson, supra. This is true because the comment directly focuses the jury's attention on the defendant's personal feelings of remorseevidence the defendant can only supply through his own testimonywhich, in turn, necessarily implicates the defendant's failure to testify. Id. A reference to a defendant's neutral nontestimonial courtroom demeanor is equally improper if it is made in order to create an unreasonable inference of guilt. Good v. State, 723 S.W.2d 734 (Tex.Cr.App.1986).
However, given the ambiguous nature of the prosecutor's comment in this case, that comment is reasonably open to at least one other construction. The jury could have reasonably interpreted the statement as a reference to testimony presented in the courtroom concerning Appellant's lack of remorse. Indeed, there was copious testimony by various witnesses concerning Appellant's apparent lack of remorse following the murders, including: Appellant's calm demeanor between the time of the murders and his apprehension by the authorities, Appellant's three-day spree of illicit drug use immediately following the murders, the purposeful mendacity of Appellant concerning the whereabouts of his parents prior to the discovery of their bodies, and Appellant's varied and conflicting accounts of the murders.[10] See Davis v. State, 782 S.W.2d 211, 222-23 (Tex.Cr.App. 1989), cert, denied,___ U.S.___, 110 S. Ct. 2193, 109 L. Ed. 2d 520 (1990) (holding that comment on lack of remorse that was based on evidence adduced at trial was not error; rather, it was proper summation of the evidence).
Given these two different, but equally plausible, interpretations of the prosecutor's *801 truncated comment, we hold that the objectionable portion of the prosecutor's statement ("See any remorse in this courtroom other than comes from the") does not meet the Dickinson criteria outlined above. In other words, the statement would not necessarily and naturally be understood by the jury to refer to Appellant's failure to testify; nor is there a necessary implication that the statement referred to Appellant's failure to testify. Consequently we find the prosecutor's comment does not give rise to reversible error.[11]
Moreover, even assuming, arguendo, that the State's argument alluded to Appellant's failure to testify, we hold that on the facts of this case any error caused thereby was cured by the trial judge's instruction to the jury to disregard any comments regarding Appellant's in-court demeanor. Our decision is harmonious with the general rule providing that harm caused by an improper remark during argument can be cured by an appropriate instruction to disregard, unless the remark is so inflammatory that its prejudicial effect cannot be effectively removed. Bower v. State, 769 S.W.2d 887, 907 (Tex.Cr.App. 1989), cert, denied, 492 U.S. 927, 109 S. Ct. 3266, 106 L. Ed. 2d 611 (1989); Jones v. State, 693 S.W.2d 406, 409 (Tex.Cr.App. 1985). After a careful review of the record, as well as our analysis of the ambiguous nature of the prosecutor's comment, we hold that this comment was not so objectionable that it could not be cured by an instruction to the jury to disregard. Point nine is overruled.
The judgment of the trial court is AFIRMED.
NOTES
[1] At the time of the instant case, Tex.Code Crim. Proc. art. 37.071(b) provided:
On conclusion of the presentation of the evidence, the court shall submit the following three 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; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[3] The right of a defendant to intelligently exercise his peremptory strikes is implicit in the constitutional right of representation under both the state and federal constitutions. See Shipley v. State, 790 S.W.2d 604, 607-8 (Tex.Cr. App.1990).
[4] For example, when Appellant later questioned another venireperson on special issue number three, he asked more than ten questions concerning that subject.
[5] Texas Code of Criminal Procedure, article 35.-16(b) provides: A challenge for cause may be made by the State for any of the following reasons:
* * * * * *
3. That [the juror] has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.
[6] The Appellant submitted the following requested instruction to the trial court regarding special issue number two:
The prosecution must prove beyond a reasonable doubt that there is a probability that the defendant will commit criminal acts of violence on a continuing basis.
* * * * * *
To answer Special Issue # 2 "yes," you must find that the defendant's violent conduct will probably continually threaten society as long as he lives. Thus, if you do not believe that it is substantially more likely than not that the defendant will continue to commit violent crimes, you must answer Special Issue #2 "no," even if you believe there is some probability that he will commit one or more criminal acts of violence in the future.
When you decide whether the defendant will continually commit violent crimes, you must consider the fact that he will be sentenced to life in prison and will therefore not live among society in the free world. Thus, if you believe that the defendant will not continually commit violent crimes in prison, you must answer Special Issue #2 "no," even if you believe there is a likelihood he would do so as a free man.
[7] See Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).
[8] The trial court's charge to the jury reads, in relevant part, as follows:
You are instructed that in answering the special issues, which you will show in your verdict, you may take into consideration all the facts shown by the evidence admitted before you in the full trial of this case, and the law as submitted to you in this charge and the charge heretofore given to you by the Court.
The burden of proof is on the State to prove each issue submitted to you beyond a reasonable doubt. If the State does not prove an issue beyond a reasonable doubt or if you have a reasonable doubt thereof, then you shall answer the issue or issues "No."
* * * * * *
You are the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given the testimony, but you are bound to receive the law from the Court which is herein given to you and be governed thereby.
[9] Article 38.08 provides:
Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.
[10] This Court does not endorse either of the above-stated interpretations of the prosecutor's comments, but merely notes them as illustrations of the patent ambiguity of the unfinished statement.
[11] In reaching this conclusion, we distinguish this Court's opinion in Good v. State, 723 S.W.2d 734 (Tex.Cr.App.1986) (holding that a lengthy and relentless diatribe directed at defendant's in-court demeanor during final argument improperly focused on the defendant's neutral nontestimonial demeanor and thereby created an unreasonable inference of guilt). In Good, the prosecutor's nvective was a manifestly unjust appeal to the jury to convict the defendant just appeal to the juty to convict the defendant based on his irrelevant nontestimonial appearance and was clearly outside the scope of appropriate final argument. By contrast, in the caseat-bar, the complained-of statement was short, unfinished, and ambiguous. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2456134/ | 493 S.W.2d 742 (1973)
SHELL CHEMICAL COMPANY et al., Petitioners,
v.
Adele L. LAMB et al., Respondents.
No. B-3311.
Supreme Court of Texas.
May 2, 1973.
Rehearing Denied May 30, 1973.
*743 Baker & Botts, Robert J. Malinak, Vinson, Elkins, Searls & Smith, Gerald P. Coley, Fulbright, Crooker & Jaworski, Jerry V. Walker and Rufus Wallingford, Houston, for petitioners.
Garrett & Letbetter, Tom R. Letbetter, and George Payne, Mounger & Whittington, Rex Mounger, George D. Neal, Houston, for respondents.
McGEE, Justice.
Adele L. Lamb, individually and as next friend for Robin L. Lamb, and Mila Jean Lamb Thompson, joined by her husband, Kenneth D. Thompson, brought suit in the district court against Shell Chemical Company, Shell Oil Company, and H. K. Ferguson Company for the wrongful death of Edward N. Lamb. These plaintiffs, as the community survivors of Edward N. Lamb, also sought recovery for damages for personal injuries sustained by Edward N. Lamb. Shell Chemical Company, by way of a cross action, sought contractual indemnity against the H. K. Ferguson Company. The H. K. Ferguson Company brought the Fisk Electric Company into the suit and sought contractual indemnity against Fisk as a third party defendant.
In 1966 a Shell plant was being constructed on Shell's property near Deer Park in Harris County, Texas. The H. K. Ferguson Company, hereinafter called Ferguson, was the general contractor for this project. The Fisk Electric Company, hereinafter called Fisk, was an electrical subcontractor under Ferguson. The deceased, Edward N. Lamb, was an employee of Fisk.
On June 7, 1966 while working on the Shell premises under the supervision of Fisk, Edward N. Lamb fell from a ladder and suffered injuries from which he died *744 ten (10) days later. Plaintiffs alleged that the deceased, while working as an electrician and in the course of installing electric wiring, conduit, pipes and supporting devices, received an electrical shock which caused him to lose his balance and fall from the ladder.
Plaintiffs alleged that various acts of negligence on the part of Shell and Ferguson proximately caused the occurrence made the basis of the suit.
The district court withdrew the case as it pertained to Ferguson from the jury and rendered judgment that plaintiffs take nothing from Ferguson. Based on the jury's verdict favorable to Shell, judgment was rendered that plaintiffs take nothing from Shell Chemical Company and Shell Oil Company. Judgment was also rendered that Shell take nothing against Ferguson and that Ferguson take nothing against Fisk.
The court of civil appeals reversed and remanded. 476 S.W.2d 885. We reverse the judgment of the court of civil appeals, and we affirm the judgment of the district court.
The court of civil appeals reversed the judgment of the trial court that plaintiffs take nothing against Shell, and remanded the cause holding that the trial court erred in allowing Fisk six peremptory jury strikes. Petitioners Shell and Fisk contend that the court of civil appeals erred in so holding. Rule 233, Texas Rules of Civil Procedure, provides that:
"Each party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court...."
However, the mere fact that one is named as a party to a lawsuit does not in itself entitle him to six peremptory strikes. In order for each of two defendants to be entitled to the six peremptory strikes allowed by Rule 233, it must appear from the pleadings that the interests of those defendants are antagonistic on an issue with which the jury may be concerned.[1] See Retail Credit Company et al. v. S. H. Hyman, 316 S.W.2d 769 (Tex.Civ.App.1958, writ ref'd); William J. O'Day v. Sakowitz Brothers, 462 S.W.2d 119 (Tex.Civ.App. 1970, writ ref'd n. r. e.); M. L. Mayfield Petroleum Corporation v. Kelly, 450 S.W.2d 104 (Tex.Civ.App.1970, writ ref'd n. r. e.); Brown & Root, Inc. v. Gragg, 444 S.W.2d 656 (Tex.Civ.App.1969, writ ref'd n. r. e.).
The court of civil appeals recognized the above principle and cited the Retail Credit case as authority for its holding. We disagree with the court's conclusion that there was no showing that Ferguson and Fisk were antagonistic as to a matter with which the jury was to be concerned. In its pleadings setting forth the third party action against Fisk, Ferguson alleged that:
"Under the terms of the subcontract being performed at the time of the accident, Fisk promised to indemnify Ferguson against all claims resulting from injury, including death, sustained by any employee of Fisk arising from any cause or for any reason."
Fisk's answer to that pleading contained a general denial.
It is well settled that a general denial puts the plaintiff (in this case, Ferguson, third party plaintiff) on proof of every fact essential to his case and issue is joined on all material facts asserted by plaintiff (in this case, Ferguson, third party plaintiff), except those which are required to be denied under oath. Trevino v. American Nat. Ins. Co., 140 Tex. 500, 168 S.W.2d 656 (1943). An essential element of Ferguson's cause of action against Fisk was that Fisk was performing its subcontract with Ferguson at the time of Lamb's *745 accident. Fisk's general denial joined issue on this material fact. This dispute was not submitted to the jury because it became moot when the trial court directed a verdict for Ferguson.
Shell's First Amended Original Answer reads in part as follows:
"Alternatively, if Mr. Lamb did not fail to exercise ordinary care, then the occurrence in question was caused solely by the negligence of a third party or parties over whom these defendants had absolutely no control." [Emphasis added].
This pleading is sufficient to raise the issue of whether Lamb's accident was caused solely by the negligence of Fisk. Agnew v. Coleman County Electric Cooperative, Inc., 153 Tex. 587, 272 S.W.2d 877 (1954).
The court of civil appeals wholly fails to make any mention of the antagonistic interest between Fisk and Shell or the issues that were actually submitted for the jury's determination as to the negligence of Fisk, the negligence of Shell and the sole negligence of Shell, together with an issue as to the negligence of Ferguson or Fisk (Special Issues 23 through 37; Special Issue 28A).
Shell sought no affirmative relief against Fisk. Nevertheless, Shell's pleading, and those of Respondents (that Ferguson was negligent), alleged issues of fact that could have resulted in ultimate liability to Fisk (because of its indemnity agreement with Ferguson if answered in the affirmative). For that reason the trial court correctly allowed Fisk six peremptory challenges. Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965).
At this early stage of the case, the time at which counsel for the respective parties examine prospective jurors and make their strikes, it must be said that under the pleadings the interests of Ferguson and Fisk and Shell were antagonistic issues with which the jury might have been concerned. Tamburello v. Welch, supra.
Having determined that the district court did not err in allowing Fisk six peremptory strikes, it becomes unnecessary to discuss Petitioners' contention that such action of the trial court, if error, was harmless. See M. L. Mayfield Petroleum Corporation v. Kelly, supra, and Ralston v. Toomey, 246 S.W.2d 308 (Tex.Civ.App.1951, writ ref'd n. r. e.).
The court of civil appeals held that the trial court erred in instructing the jury to return a verdict for Ferguson. Prior to a discussion of Petitioner Ferguson's point that the court of civil appeals erred in so holding, a factual background must be set forth.[2] The space in which Lamb was working when he fell from the ladder was under the control of Ferguson, i. e., Ferguson's work in that area had not been completed, and the area had not been turned over to Shell. An electric switchboard was located in another space from which power lines led to various areas of the Shell construction. The space containing the central switchboard was under the control of Shell, and at the time of this occurrence, Shell was conducting an employee training program utilizing portions of the switchboard.
One aspect of the central switchboard was the operation of an alarm system. Alarm units were to have been placed at various locations in the building, and wires connected to these alarm units were to lead back to and terminate at the switchboard. A single switch on the central board sent power to each of the units in the alarm system. Shell had accepted control of the alarm switch. In the course of its training program, Shell employees activated the switch on occasion, thereby energizing all alarm system wires which were terminated into the switchboard.
*746 In the space in which Lamb was working there was an alarm system wire, one end of which was terminated at the switchboard. Subsequent to Lamb's injury, it was discovered that this wire was not connected to an alarm unit, but instead, it was coiled at its loose end and taped to a pipe in the particular area in which Lamb was working. The jury found that Lamb sustained a shock which caused him to fall from the ladder. The jury failed to find that a Shell employee turned on the switch on the morning of Lamb's injury.
The evidence conflicted as to the exact nature of the work being performed by Lamb on the day of this occurrence. Vestal, a Fisk employee and the supervisor of Lamb, testified that when Lamb was assigned the day's work, this alarm circuit was properly terminated at the switchboard on one end and was connected to an alarm unit in the space in which Lamb was working. Vestal testified that he had assigned to Lamb and Lannon (another Fisk employee) the task of relocating an already completed alarm circuit. Lannon, Lamb's co-worker, testified that he and Lamb were assigned the task of installing this particular alarm circuit, and that they were in the process of doing so when Lamb's injury occurred. Lannon's version of the facts was that he and Lamb had previously routed the wire from the general area of the switchboard to the space in which they were working on the day of Lamb's injury, but that they had neither connected the wire to the switchboard nor to the alarm unit. Because they had not connected the wire to the switchboard and because no one else would have done so knowing that the work on this particular circuit had not been completed, Lannon apparently assumed that there was no danger with regard to this exposed end of the alarm circuit wire.
Although the space in which Lamb was injured was under the control of Ferguson, it is clear that any work to be done with regard to installing or relocating this alarm circuit was completely within the work province of Fisk, Ferguson's electrical subcontractor.
Petitioner Ferguson contends that it owed no duty to warn Lamb of this dangerous condition, and that the court of civil appeals erred in holding that there was a jury issue as to whether or not a reasonable inspection by Ferguson would have revealed the danger. As noted by the court of civil appeals, the duty owed by a general contractor to employees of its subcontractor is that duty owed by a general contractor is that duty owed by an occupier of land to a business invitee. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950). The cases in this area fall into two distinct lines. First, there are those cases in which the dangerous condition existed on the premises at the time of the invitee's entry for business purposes or in which the dangerous condition was created by someone or through some means unrelated to the activity of the injured invitee or his employer (subcontractor/invitee). Secondly, there are those cases in which the dangerous condition arose out of the performance of the work for which the subcontractor/invitee was employed. We will briefly analyze the law as it applies to each of these situations.
In Smith v. Henger, supra, the dangerous condition was one which existed on premises under the control of the general contractor at the time the subcontractor and the subcontractor's employees entered upon the premises. The court held that the general contractor owed a duty to an employee of a subcontractor to use reasonable care to keep the premises safe which included a duty to inspect the premises for dangerous conditions.
In this first situation, in which the danger did not arise through the work activity of the subcontractor/invitee, the subcontractor/invitee and his employees are under no duty to inspect the premises for concealed dangers. Rather, the invitees may, in law, anticipate that the general contractor will discharge his duty to inspect the premises and warn of any dangerous condition which is not open and obvious. *747 Robert E. McKee, General Contractor, Inc. v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954). The rationale of the occupier's duty in this situation to his business invitee is the occupier's superior position to know of or discover hidden dangerous conditions on his premises. Western Auto Supply Company v. Campbell, 373 S.W.2d 735 (Tex.1963); Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497 (1952). When a hidden dangerous condition exists on premises under the control of a general contractor at the time a subcontractor enters, or exists through some means other than the subcontractor's work activity on the premises, the general contractor's duty to its business invitee/subcontractor and the employees of that subcontractor may be discharged by an adequate warning to the subcontractor or one supervising his work. Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex. 1967).
When the hidden dangerous condition is not one falling into the first type but rather is one arising out of the work activity of the injured invitee or his employer (subcontractor/invitee), a different situation is presented. In Pence Const. Corp. v. Watson, 470 S.W.2d 637 (Tex.1971), we held that the general contractor owed no duty to warn the subcontractor or his employee of the dangerous condition (a vent opening on the roof of a building through which the employee fell) created by other employees of the same subcontractor. In Hailey v. Missouri, K. & T. RR. Co., 70 S.W.2d 249 (Tex.Civ.App.1934, writ ref'd), an employee of an independent contractor constructing a railroad underpass was injured by a cave-in. The opinion of the court recites the facts that when Hailey went to work there was no danger of a cave-in because there was no excavation; the danger of the cave-in was brought about by employees of the contractor; the place where the injured employee worked was one which he produced. In holding that the occupier was under no duty to warn the injured employee of the danger of a cave-in, the court distinguished those cases in which a dangerous condition existed on the premises prior to the entry and commencement of work by a business invitee.[3]
The dangerous condition to which Lamb was subjected was the existence of an exposed wire coupled with the termination of the other end of that wire into a switchboard which resulted in the occasional possibility (when the alarm system switch was turned on at the switchboard) of giving an electrical shock to a person with whom the wire came in contact. This dangerous condition did not exist on the premises at the time Fisk and its employees entered the premises as Ferguson's business invitees. There is no allegation that the dangerous condition was created by any act of Ferguson.
Although there is no evidence that any Fisk employee actually knew of the danger, the evidence warrants the conclusion that this danger arose out of the performance of the electrical work for which Fisk was employed. The facts of this case bring it within the second line of cases, and unless there is some basis for an exception, the proposition that a general contractor owes no duty to warn an employee of its subcontractor of a hidden dangerous condition arising out of the performance of the subcontractor's work would end the matter.
In Pence Construction Corp. v. Watson, supra, the court indicated that there may be such exceptional circumstances by stating as follows:
"The general contractor is ordinarily not required to tell one crew or employee of a subcontractor what another crew or employee of that same subcontractor has done in the performance of the work for *748 which the subcontractor is employed. See Hailey v. Missouri K. & T. RR., 70 S.W.2d 249 (Tex.Civ.App.1934, writ ref.); Humphreys v. Texas Power & Light Co., 427 S.W.2d 324 (Tex.Civ. App.1968, writ ref. n. r. e.); Moore v. Texas Company, 299 S.W.2d 401 (Tex. Civ.App.1956, writ ref. n. r. e.). It may be that under some circumstances there would be a concealed danger or special problem which, though created by a subcontractor's employee, the general contractor should take extra measures to call to the attention of other employees of that subcontractor." [Emphasis added].
The court of civil appeals concluded that the facts of the instant case fell within the "concealed danger or special problem" circumstances set forth in the above quoted dictum of this court, and remanded this case for a fact finding as to whether or not a reasonable inspection by Ferguson would have revealed the concealed danger. We disagree with that conclusion, and we hold that the instant case does not present one of those circumstances in which there is a duty on the general contractor to take "extra measures" to warn an employee of a subcontractor of a danger arising from the performance of the subcontractor's work.
The dangerous condition in the instant case was peculiar to the technical specialty for which Fisk was employed. Fisk had a duty to perform its work safely, and Fisk was in a superior position to prevent the existence of, to inspect for, and to eliminate or warn its employees of this dangerous condition. This circumstance is not one of those in which a general contractor is required to take the extra measures referred to in the Pence case. Instead, this is a circumstance in which the general contractor is not required to anticipate the failure of its subcontractor to discharge its duty to its own employees.
Because there was no duty on the part of Ferguson to warn Lamb of this dangerous condition, the trial court properly directed a verdict for Ferguson.
The judgment of the court of civil appeals is reversed, and the judgment of the trial court is affirmed.
NOTES
[1] It should be noted that this case was instituted prior to the amendment to Art. 2094 which makes it the duty of the trial court to equalize the number of peremptory challenges in accordance with the ends of justice.
[2] For a more detailed report of the facts see the opinion of the court of civil appeals at 476 S.W.2d 885.
[3] See also Humphreys v. Texas Power & Light Co., 427 S.W.2d 324 (Tex.Civ.App. 1968, writ ref'd n. r. e.); Perez v. Hernandez, 317 S.W.2d 81 (Tex.Civ.App. 1958, writ ref'd n. r. e.). and Humble Oil and Refining Co. v. Bell, 180 S.W.2d 970 (Tex.Civ.App.1943, writ ref'd w. o. m., 142 Tex. 645, 181 S.W.2d 569, 1944). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2529628/ | 92 F. Supp. 2d 643 (2000)
CSX TRANSPORTATION, INC., Plaintiff,
v.
CITY OF PLYMOUTH and Jennifer M. Granholm, Attorney General of the State of Michigan, Defendants.
No. 98-73615.
United States District Court, E.D. Michigan, Southern Division.
April 12, 2000.
*644 George Pappas, Vicki Margolis, Kevin B. Collins, Venable, Baetjer and Howard, LLP, Baltimore, MD, Jack O. Kalmink, Dirk H. Beckwith, Detroit, MI, Cynthia Craig-Johnson, CSX Transportation, Inc., Jacksonville, FL, for plaintiff.
Michael Frezza, Asst. Attorney General, John W. Martin, Detroit, MI, Daniel Saphire, Washington, DC, for defendants.
OPINION & ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT; DENYING AS MOOT PLAINTIFF'S MOTION TO STRIKE ATTORNEY GENERAL'S JURY DEMAND; AND DENYING PLAINTIFF'S MOTION TO STRIKE THE BRICKEY AFFIDAVIT
EDMUNDS, District Judge.
This matter comes before the Court on Plaintiff, CSX Transportation, Inc.'s, ("CSXT") motion for summary judgment *645 and on Defendants City of Plymouth and the Attorney General of the State of Michigan's cross-motions for summary judgment. Also before the Court are Plaintiff's motion to strike the Attorney General's jury demand and to strike the Brickey Affidavit. The Association of American Railroads has filed an amicus curiae memorandum in support of the positions taken by CSXT in its motion.
As discussed below, CSXT challenges a Michigan state statute which limits the amount of time a train can block a grade crossing to five minutes. CSXT argues that the state law is preempted by federal statutes and regulations and that it unduly burdens interstate commerce in violation of the Commerce Clause. The Court finds that the state statute is preempted by the Federal Railroad Safety Act, 49 U.S.C. § 20101, et seq., and the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. § 10101, et seq., and is unconstitutionally violative of the Commerce Clause. U.S. CONST. ART. I § 8, cl. 3. Accordingly, Plaintiff's motion for summary judgment is GRANTED, and Defendants' cross-motions for summary judgment are DENIED. Plaintiff's motion to strike the Brickey Affidavit is DENIED, and its motion to strike the Attorney General's jury demand is DENIED AS MOOT.
I. Background
Plaintiff, CSX Transportation, Inc. ("CSXT") operates interstate trains throughout Michigan which cross the City of Plymouth's streets. The trains also cross numerous intersections in Wayne County.
A Michigan statute prohibits the railroad from blocking vehicular traffic at an intersection for longer than five minutes at any one time. Mich. Comp. Laws Ann. § 462.391 ("state statute" or "statute"). The statute contains two exceptions to the five minute time limit: (a) if the train is continuously moving in the same direction at not less than 10 miles per hour for not longer than seven minutes; or (b) if the railroad can show that the incident occurred as a result of a verifiable accident, mechanical failure, or unsafe condition. Mich. Comp. Laws Ann. § 462.391(1)(a)(b). A fine of $500 is imposed for a violation. CSXT has been issued numerous citations for having violated the statute.
CSXT filed this lawsuit seeking a declaration that the state statute is unconstitutional as applied. CSXT argues the statute is (1) expressly preempted by the Federal Railway Safety Act ("FRSA"), 49 U.S.C. § 20101, et seq.; (2) preempted by the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. § 10101, et seq., and (3) unduly burdensome of interstate commerce in violation of the Commerce Clause, U.S. CONST. Art. 1, § 8, cl. 3.
The instant lawsuit represents round two in a bout of litigation between CSXT and the City of Plymouth. A few years ago, CSXT brought a similar declaratory action in federal court against the City of Plymouth seeking to invalidate, on similar grounds, a Plymouth city ordinance which imposed a five minute intersection time limit on the railroad similar to the state statute's time limit at issue here.[1]
The case reached the Sixth Circuit in 1996. In CSX Transportation, Inc. v. City of Plymouth, 86 F.3d 626 (6 th Cir.1996)("Plymouth I"), the Court of Appeals affirmed Judge LaPlata's grant of summary judgment for CSXT, finding that the city ordinance was preempted by the FRSA. The FRSA contains an express preemption clause which provides:
*646 Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order -
(1) is necessary to eliminate or reduce an essentially local safety hazard;
(2) is not incompatible with a law, regulation, or order of the United States Government; and
(3) does not unreasonably burden interstate commerce.
49 U.S.C. § 20106.
Only the first sentence of the preemption clause was at issue in Plymouth I. Under that sentence, the Court of Appeals determined that the city ordinance was preempted because it "related to railroad safety." Although the ordinance did not make express reference to railroad safety, the Sixth Circuit held that "[i]t is on the basis of potential safety aspects of compliance with the ordinance that the challenged ordinance relates to railroad safety ... [I]t appears that compliance with the challenged ordinance would require either shorter or faster trains." Plymouth I, 86 F.3d at 629. Because evidence offered in the case demonstrated that requiring either shorter or faster trains would affect accident rates, the ordinance "related to railroad safety" and was thus preempted.
The Court of Appeals did not address the two "savings clauses" which it held apply only to state statutes. The first savings clause applies to state statutes which regulate railroad safety when the Secretary has not covered the subject matter of the state requirement. The other applies where the state law addresses a local safety hazard, is not in conflict with federal law, and does not unduly burden interstate commerce. 49 U.S.C. § 20106. The savings clauses were not at issue in Plymouth I. They are at issue here because this case involves the application of a state statute.
II. Facts
The material facts are not in dispute. CSXT's brief contains a detailed explanation of the various ways in which its trains block intersections in violation of the state statute. See Pl.'s Br. at 5-26. In sum, CSXT describes three scenarios by which it blocks grade crossings[2] in Wayne, and four scenarios by which it blocks grade crossings in Plymouth. The primary reasons for the blocked crossings are due to the trains' length, the trains' speed limit, which is determined by the class of track maintained by CSXT, the performance of two types of federally-mandated air brake tests, and the coupling and uncoupling of cars. See Pl.'s Exb. 2, Jenkins Aff. at ¶¶ 20-64.
Since August of 1997, the violations have resulted in 607 citations by Plymouth, amounting to fines of $303,500 and 285 citations by Wayne, amounting to fines of $142,500. Pl.'s Exb. 2, Jenkins Aff. at ¶ 9.[3]
III. Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c). The central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that *647 one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). After adequate time for discovery and upon motion, Rule 56(c) mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The movant has an initial burden of showing "the absence of a genuine issue of material fact." Celotex, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265. Once the movant meets this burden, the non-movant must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). To demonstrate a genuine issue, the non-movant must present sufficient evidence upon which a jury could reasonably find for the non-movant; a "scintilla of evidence" is insufficient. Liberty Lobby, 477 U.S. at 252, 106 S. Ct. 2505.
The court must believe the non-movant's evidence and draw "all justifiable inferences" in the non-movant's favor. Liberty Lobby, 477 U.S. at 255, 106 S. Ct. 2505. The inquiry is whether the evidence presented is such that a jury applying the relevant evidentiary standard could "reasonably find for either the plaintiff or the defendant." Liberty Lobby, 477 U.S. at 255, 106 S. Ct. 2505.
IV. Analysis
A. Federal Preemption
The Supremacy Clause of the United States Constitution provides that "the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST., Art. VI, cl. 2. Thus where a state law conflicts with or frustrates a federal law, the former must yield. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993); Maryland v. Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981).
The United States Supreme Court has explained that the Supremacy Clause preempts state law in three circumstances. English v. General Elec. Co., 496 U.S. 72, 78, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990). First, there is express preemption, whereby Congress explicitly defines the extent to which its pronouncements preempt state law. Id.; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-98, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983). In the context of express preemption, congressional intent controls. English, 496 U.S. at 79, 110 S. Ct. 2270; Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299, 108 S. Ct. 1145, 99 L. Ed. 2d 316 (1988). Second, absent explicit direction from Congress, state law is preempted where it "regulates conduct in a field that Congress intended the Federal Government to occupy exclusively." English, 496 U.S. at 79, 110 S. Ct. 2270. Such intent may be "inferred from a `scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' or where an Act of Congress `touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" Id., (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947)). Third, under the doctrine of conflict preemption, a state law is preempted "to the extent that it actually conflicts with federal law." English, 496 U.S. at 79, 110 S. Ct. 2270. The Supreme Court has determined that state laws are preempted "where it is impossible for a private party to comply with both state and federal requirements, see, e.g., Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963), or where state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" English, 496 U.S. at 79, 110 S. Ct. 2270, *648 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941)).
In this case, Congress has spoken. Thus, the analysis concerns whether or not the state statute is preempted by the Federal Railway Safety Act's express preemption provision.
B. No Presumption of Validity
At the outset, the parties dispute whether the Court should start with a presumption that the state law is valid as an exercise of the state's police powers. The United States Supreme Court very recently resolved this dispute. In United States v. Locke, ___ U.S. ___, 120 S. Ct. 1135, 146 L. Ed. 2d 69 (2000), the Court held preempted a series of regulations enacted by the State of Washington in response to the Exxon Valdez oil spill which addressed inter alia, tanker operations and design, as well as crew training and qualifications. In Locke, the Court made clear that "an `assumption' of nonpreemption is not triggered when the State regulates in an area where there has been a history of significant federal presence." Id. at 1147. Contrast, Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S. Ct. 1305, 51 L. Ed. 2d 604 (1977)(assumption triggered where "the field which Congress is said to have pre-empted has been traditionally occupied by the States"); see also Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996)(presumption applied in case involving medical negligence which has been historically regulated by the states). The Locke Court noted that "Congress has legislated in the [area of maritime commerce] from the earliest days of the Republic, creating an extensive federal statutory and regulatory scheme." Locke, ___ U.S. at ___, 120 S.Ct. at 1148.
Important for our purposes here, the Court expressly stated:
The state laws now in question bear upon national and international maritime commerce, and in this area there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers. Rather, we must ask whether the local laws in question are consistent with the federal statutory structure, which has as one of its objectives a uniformity of regulation for maritime commerce.
Id.
There can be no doubt that just as Congress has regulated ships and vessels since the beginning of the Republic, it has similarly done so with respect to our Nation's rail system. Both Congress and the courts have traditionally recognized a need to regulate railroad operations at a national level. Enacted in 1887, the Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887), has been described as "among the most pervasive and comprehensive of federal regulatory schemes." Chicago and N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318, 101 S. Ct. 1124, 67 L. Ed. 2d 258 (1981). As amended, the Act still governs federal railroad regulation. Congress' power to regulate the railroad industry has been well-recognized. Pittsburgh & Lake Erie R.R. v. Railway Labor Executives' Ass'n, 491 U.S. 490, 510, 109 S. Ct. 2584, 105 L. Ed. 2d 415 (1989); Houston, E. & W. Tex. Ry. v. United States, 234 U.S. 342, 350-52, 34 S. Ct. 833, 58 L. Ed. 1341 (1914). The preclusive effect of federal regulation has been repeatedly acknowledged. City of Chicago v. Atchison, Topeka and Santa Fe Ry. Co., 357 U.S. 77, 88-89, 78 S. Ct. 1063, 2 L. Ed. 2d 1174 (1958); Colorado v. United States, 271 U.S. 153, 165-66, 46 S. Ct. 452, 70 L. Ed. 878 (1926).
Several Acts of Congress have established a broad network of federal railroad regulations. In 1970, Congress passed the Federal Railway Safety Act, 49 U.S.C. § 20101, et seq., which was designed to promote the national regulation of railroad safety. In 1980, Congress passed the Staggers Rail Act, Pub.L.No. 96-448, 94 Stat. 1895 (1980), in which it took steps to reduce the state's regulatory authority over interstate rail lines. The Swift Rail Development Act, Pub.L. No. 103-440, 108 *649 Stat. 4615,[4] passed in 1994, provided for the development of high-speed rail transportation, and contained provisions designed to improve safety at highway-railway grade crossings. In 1995, Congress enacted the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. § 10101, et seq., in an effort to further decrease state regulatory and economic controls over the railroad industry.
These decisions and Acts of Congress, as well as the numerous federal regulations which pertain to this area, have created "an extensive federal statutory and regulatory scheme." Locke, 120 S.Ct. at 1148. Accordingly, in this area, as in Locke, where the state statute at issue bears upon an area traditionally regulated by the federal government, "there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers." Id.
C. Express Preemption under Federal Railway Safety Act
Congress enacted the Federal Railway Safety Act ("FRSA") in 1970 in order to promote national regulation of railroad safety. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 661, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993). The Act's purpose is to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. Under the Act, the Secretary of Transportation is entrusted with broad powers to "prescribe regulations and issue orders for every area of railroad safety." 49 U.S.C. § 20103. Another goal of the statute is to ensure national uniformity of railroad regulation, as evidenced by the Act's express preemption provision which reads:
Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order -
(1) is necessary to eliminate or reduce an essentially local safety hazard;
(2) is not incompatible with a law, regulation, or order of the United States Government; and
(3) does not unreasonably burden interstate commerce.
49 U.S.C. § 20106.
Under this preemption clause, a state regulation related to railroad safety is permissible where the Secretary has not regulated, or where the state regulation is in response to a local, rather than a national, safety concern, so long as the regulation is not in conflict with federal law and does not unduly burden interstate commerce. Both savings clauses are at issue in this case.
It should be noted at the outset that the issue here is not whether the Michigan statute implicates railroad safety concerns, as was the issue with respect to the city ordinance inPlymouth I. See, e.g., CSX Transp., Inc. v. City of Plymouth, 86 F.3d 626, 629 (6th Cir.1996); see also, Southern Pac. Transp. Co. v. Public Util. Comm'n of Oregon, 9 F.3d 807, 812-13 (9th Cir.1993). Rather, the issue is whether the state statute is valid under either of the two savings clauses.
1. First Savings Clause
The first issue is whether the state statute falls within the first savings clause of the preemption provision. The question becomes whether the Secretary of Transportation has prescribed a regulation or issued an order "covering the subject matter" of the state statute. In order to *650 answer this question, the Court must determine the "subject matter" of the state law, and determine whether an order or regulation by the Secretary is deemed to "cover" the subject matter of the state requirement.
The United States Supreme Court, in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993), provided some guidance for determining whether a federal regulation covers the subject matter of a state requirement under the FRSA. The Court explained:
[to prevail on the claim that the [federal] regulations have pre-emptive effect, petitioner must establish more than that they `touch upon' or `relate to' th[e] subject matter of the state law], cf. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992)(statute's use of "relating to" confers broad pre-emptive effect), for `covering' is a more restrictive term which indicates that pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law.
Id. at 664, 113 S. Ct. 1732 (emphasis added).
The Court stressed that the term "covering" is "employed within a provision that displays considerable solicitude for state law in that its express pre-emption clause is both prefaced and succeeded by express saving clauses." Id. at 665, 113 S. Ct. 1732.
a. Subject Matter of the State Requirement
The subject matter of the state requirement, "is the safety concerns that the state law addresses." Burlington N. and Santa Fe Ry. Co. v. Doyle, 186 F.3d 790 (7th Cir.1999); Burlington N. R.R. v. Montana, 880 F.2d 1104, 1106 (9th Cir.1989). Identifying the safety concerns that a state or federal regulation addresses "will necessarily involve some level of generalization that requires backing away somewhat from the specific provisions at issue." Doyle, 186 F.3d at 796. If the court does not generalize, "a state law could be preempted only if there were an identical federal regulation, and ... Easterwood teaches us this is not so." Id., (citing Easterwood, 507 U.S. at 674, 113 S. Ct. 1732 (wherein the court found preemption through a series of related regulations and overall structure of regulations, although no regulation directly addressed state requirement) and Montana, 880 F.2d at 1106 (wherein the court found federal regulation preempted state law requiring trains to have a caboose because both were aimed at the same safety concerns)).
On the other hand, too much generalizing renders the analysis meaningless because all regulations touch upon rail safety or public safety. Doyle, 186 F.3d at 796. For example, in Easterwood, the Court did not rely upon broad categories such as "railroad safety" but rather focused more specifically on the narrower categories of warning devices at grade crossings and train speed. Easterwood, 507 U.S. at 666-73, 113 S. Ct. 1732; Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 515 (5th Cir.1999).
The Michigan statute at issue limits the amount of time a train can block vehicular traffic to five minutes. The state statute reads, in pertinent part:
(1) A railroad shall not permit a train to obstruct vehicular traffic on a public street or highway for longer than 5 minutes at any 1 time, except the obstruction shall not be considered a violation under the following circumstances:
(a) If the train is continuously moving in the same direction at not less than 10 miles per hour for not longer than 7 minutes.
(b) If the railroad can show that the incident occurred as a result of a verifiable accident, mechanical failure, or unsafe condition.
(2) A railroad shall not permit successive train movements to obstruct vehicular traffic on a public street or highway until all vehicular traffic previously delayed by such train movements has been cleared.
*651 ...
(4) Each offense under this section shall be a separate violation punishable by a fine of not more than $500.00 unless the railroad is willfully, deliberately, and negligently blocking vehicular traffic and then the fine shall be not more than $1,000.00 and the costs of prosecution.
Mich. Comp. Laws Ann. § 462.391.
According to the State and the City of Plymouth, the subject matter of the state statute involves vehicular safety, or safety on Michigan highways, and has nothing at all to do with railway safety. Rather, Defendants contend, the state law's safety objective is to facilitate the timely movement of emergency vehicles through grade crossings. They contend that the law's subject matter involves highway safety, an area traditionally regulated by the states. This safety goal is not at odds with the safety goals of railroad regulations, they contend, because railroad regulations address railroad safety, not highway safety. Defendants then repeatedly argue that because there is no corresponding federal regulation which addresses the issue of how long a train may block a crossing, the state statute survives under the first savings clause.
At the outset it should be noted that nothing in the record supports Defendants' purported safety justification for the state law. Neither the plain language of the statute, nor its legislative history support this assertion. The plain language of the statute makes clear that the law applies only to railroads and not to any other vehicle or entity which may cause an obstruction at an intersection. The statute is not one of general applicability, such as a criminal law, antitrust law, or environmental law, which would apply to all persons generally, rather it applies only to regulate railroads.
Defendants offer no legislative history in support of the statute's purported safety concerns. Legislative history offered by CSXT suggests that when the bill that eventually became the statute was first introduced, it allowed railroads to block intersections for ten minutes but that the bill was arbitrarily amended on the House side to limit the amount of time to five minutes. (Pl.'s Exb. 38 at 29-44). Defendants come forward with various scenarios which purport to justify the statute's enactment, post hoc. For example, they offer testimony that a fire doubles every twenty seconds, and that after six minutes a cardiac patient's survival rate is dramatically reduced. (Atty. Gen.'s Exb. C, O'Brien Dep. at 17). Defendants fail to explain how the time limitations imposed by the statute, which allows blockage for between five and seven minutes, further its intended safety goals. That is not to say that the statute lacks a rational basis, but only to point out that there is little evidence in the record to support Defendants' argument that the state statute is aimed to ensure highway safety, rather than to directly regulate railroads. Furthermore the statute is codified in that section of the Michigan Compiled Laws that deals with regulations of railroads. It is not codified within the section of laws relating to motor vehicles (256.1-260.End), or the laws relating to highways (220.1-255.End).
CSXT, on the other hand, argues that the subject matter of the state statute should be determined by what the statute actually regulates. CSXT looks to what is required of it in terms of compliance with the state law, and concludes, based on Plymouth I, that compliance with the state law's time limit requires it to run either shorter or faster trains. Thus, CSXT argues that the statute's subject matter involves the regulation of train speed, train length, and air brake tests.
It is important to note that in the cases which suggest that the subject matter of the state law be determined in terms of its intended safety objective, cf., Doyle, Montana, the safety objective of the law is defined in terms of how the state regulation affects the railroad. Thus, in those cases the state statutes at issue were preempted both because they dealt with safety as it affected the cabooses of trains and because the federal regulations covered *652 the subject matter of the state's caboose law. The Court here must also evaluate the safety objective of the statute in terms of how it affects railroad safety. Thus, in characterizing the subject matter of the state requirement, the Court must not turn a blind eye to the statute's effect on the railroad, as Defendants would urge the Court to do.
Even assuming that the state statute's subject matter is to be characterized as Defendants suggest, that does not end the inquiry. Defendants would have the Court find that the statute's safety goal is to address highway safety. They then contend that none of the federal regulations address those same safety concerns, and that therefore, the savings clause saves the law from preemption. In sum, they argue repeatedly throughout their briefs that the first savings clause saves the statute because there is no federal regulation which addresses the issue of how long a train may block a crossing, which they contend is the subject matter of the state requirement. This narrow characterization of the state law oversimplifies the issue.
Under Defendants' formulation, a state law could be preempted only if there were an identical federal regulation that addressed how long a train could block a crossing. Pursuant to the Supreme Court's decision in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993), however, it is not necessary for the federal regulation to be identical in order for preemption to apply. Easterwood found preemption through a series of related regulations, even though no particular regulation addressed the state requirement. Id. at 675, 113 S. Ct. 1732.
Thomas Easterwood died when his truck collided with a train at a grade crossing in Georgia. His surviving wife filed a diversity suit alleging breaches of CSXT's state common law duty to operate a train at a reasonable speed and CSXT's state statutory duty to maintain proper warning signals at the grade crossing. The Supreme Court held that the FRSA preempted the state law concerning train speed, but not the state law concerning maintenance of warning signals. Id. at 676, 113 S. Ct. 1732.
The Court focused its analysis upon whether existing federal regulations "covered the subject matter of train speed." Id. at 675, 113 S. Ct. 1732. The Court easily identified "train speed" as the subject matter of the state law. The Court found that regulations enacted under FRSA "covered the subject matter." The regulations classified train tracks according to hazards posed by track conditions, and set maximum speed requirements for each track class. The Court was not persuaded by Easterwood's argument that preemption did not lie because "the Secretary's primary purpose in enacting the speed limits was not to ensure safety at grade crossings, but rather to prevent derailments." Id. at 675, 113 S. Ct. 1732. Relying on the plain meaning of the preemption clause, the Court found that the clause did not "call for an inquiry into the Secretary's purposes, but instead directs the courts to determine whether regulations ... cover the subject matter of train speed." Id. The Court found that the federal speed regulation established a ceiling which "preclud[ed] additional state regulation."[5]
*653 In determining that train speed was the subject matter of the state law, the Court essentially looked at what the state law regulated, more so than at its purpose. The common law claim was based on a theory of excessive speed, thus the state law purported to regulate the subject matter of speed, a subject which federal regulations amply covered. Similarly here, the state statute's purpose may indeed be directed at highway safety. However, the state statute actually regulates, albeit indirectly, the subject matter of speed, train length, and the performance of air brake tests.
b. Speed
In 1971, the Secretary of Transportation promulgated regulations setting maximum train speeds for different classes of track. 49 C.F.R. 213.9. As just discussed, in Easterwood, the Supreme Court held that the FRSA preempted a state claim for negligence based on excessive speed. The Court recognized that the regulation addresses only maximum speeds at which trains are permitted to travel, but noted that "the speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation...." Easterwood, 507 U.S. at 674, 113 S. Ct. 1732. The Court stated that the regulation "should be understood as covering the subject matter of train speed with respect to the track conditions, including the conditions posed by grade crossings." Id. at 675, 113 S. Ct. 1732.
There can be little doubt that the state regulation here imposes a condition on grade crossings which is related to the train's speed. Indeed the statute facially regulates train speed by including an exception which exempts a train from a violation "[i]f the train is continuously moving in the same direction at not less than 10 miles per hour for not longer than 7 minutes." Mich. Comp. Laws Ann. 462.391(1)(a). The FRA recently made comprehensive revisions to the Track Safety Standards set forth in 49 C.F.R. Part 213. In so doing, the FRA reiterated the breadth of federal speed regulation and explicitly noted that there is no room for adjustments of train speed at grade crossings:
Under the current Track Safety Standards, FRA has only an indirect role in determining speed limits. Railroads set train speed in their timetables or train orders. Once a railroad sets a train speed, it must then maintain the track according to FRA standards for the class of track that corresponds to that train speed. The signal and train control regulations also fix limits on train speed based upon the type of signal system that is in place. If the railroad fails to comply with track or signal system requirements for speed at which trains are operated, the railroad is subject to penalty.
FRA's current regulations governing train speed do not afford any adjustment of train speeds in urban settings or at grade crossings. This omission is intentional. FRA believes that locally established speed limits may result in hundreds of individual speed restrictions along a train's route, increasing safety hazards and causing train delays.
Pl.'s Exb. 25, 63 Fed.Reg. at 33998-99.
There can be little doubt that to the extent the state statute regulates speed, it is preempted by the FRSA, because the federal regulations cover the subject matter.
Defendants make two primary arguments in response to CSXT's contention that federal speed regulations preempt the statute. First, Defendants argue that the federal train speed regulations are aimed *654 at a distinctly different safety purpose than the state statute which they dub the "Traffic Obstruction Statute." They contend that 49 C.F.R. § 213.9 is aimed at railroad safety, specifically, hazards imposed by track conditions, i.e. traveling too fast for the track selected by CSXT. In contrast, the Traffic Obstruction Statute is aimed at "minimizing delays of EMS, police and fire vehicles on highways and preserving lives and property distant and unconnected to the railroad." Accordingly, the regulation does not preempt the state law. (Atty Gen's Br. at 19).
The argument has simple appeal. In Easterwood, however, the Court specifically rejected Easterwood's attempt to focus on the purpose behind the federal regulation in determining whether federal law covered the subject matter. Id. at 675, 113 S. Ct. 1732. The State here cannot ignore the fact that the effect of its regulation is to regulate train speed and length. Numerous cases have held that 49 C.F.R. 213.9 preempts train speed requirements, rejecting the proposition that individual localities can establish local speed requirements. See City of Covington, Kentucky v. Chesapeake & Ohio Ry. Co., 708 F. Supp. 806 (E.D.Ky.1989)(first savings clause would not save local ordinance limiting train speed to twenty-five miles per hour because 49 CFR § 213.9 covers the same subject matter); Consolidated Rail Corp. v. Smith, 664 F. Supp. 1228 (N.D.Ind.1987)(finding ordinances regulating local train speed limit preempted, and stating that "separate regulation by every city, village, township, or hamlet along the mainline would undermine safety infinitely more. Separate municipal regulation of speed is so greatly at odds with the Congressional purpose of uniformity as to need no further argument." Id. at 1238); Southern Pac. Transp. Co. v. Baldwin, 685 F. Supp. 601 (W.D.La.1987)(finding that the first savings clause could not save the local ordinance because the "Secretary of Transportation has enacted regulations specifically designating permissible operating speeds for various classes of track." Id. at 603 (citing 49 C.F.R. § 213.9)).
The state law here, in effect, regulates length and speed. The law, in practice, sets a minimum speed limit, which requires the trains to travel faster through intersections with local roads, implicating serious grade crossing safety concerns. The Secretary of Transportation has found that higher average train speeds lead to an increase in the number of fatal accidents. See Sec. of Transp. Report to Congress, April 1989; see also Plymouth I, 86 F.3d at 630. If CSXT were to run shorter trains, they would have to run more trains per day in order to meet the daily demands of their business. The Secretary has also found that "[c]hanges in highway traffic volumes and total trains per day affect accident rates more than other factors." Id. at 629. Thus to the extent that the statute regulates speed, or would require a higher volume of shorter trains, it affects railroad grade crossing safety. Id. at 630. The import of this is not to point out that the state statute "relates to" railroad safety, for clearly it does under the holding of Plymouth I, but rather to point out that the statute affects safety at grade crossings. Grade crossing safety, in addition to speed, is an area covered by the federal regulations. Part 234 of 49 C.F.R. sets forth a detailed set of regulations detailing grade crossing signal safety and procedures to follow in the event of a grade crossing warning system malfunction. The regulations set forth maximum speed requirements at grade crossings which apply in the event of a signal system failure. 49 C.F.R. § 234.105; 234.106; 234.107.
Second, and more importantly, Defendants argue that federal law does not establish train speed. Rather, the railroads select the speed and then the FRA determines which class of track it must maintain based on that selection. "Once a railroad sets a train speed, it must then maintain the track according to FRA standards for the class of track that corresponds to that train speed." 63 Fed.Reg. XXXXX-XXX. Easterwood involved a class four track for which the maximum speed was sixty miles *655 per hour. The train in Easterwood was traveling below this federal maximum, but the plaintiff argued that the railroad breached its common law duty to operate its train at a moderate and safe rate of speed.
Thus Defendants attempt to distinguish Easterwood on the grounds that CSXT could select a faster speed and upgrade its track class in order to comply with the state statute. Viewed in this way, there are other ways in which CSXT could comply besides running shorter or faster trains. They could upgrade their track class, thus upgrading the federally mandated speed for that type of track. If this is the case, then the state law does not have the effect of limiting length or increasing speed, but rather would have the effect of requiring the railroad to restructure its lines at a considerable expense. To the extent that the state statute has this effect, as discussed below, it is preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10101, et seq., and violates of the Commerce Clause.
c. Length
The statute also can be viewed as having the effect of regulating train length. It is important to note that, mathematically, speed and length cannot be separated.[6] Accordingly, the fact that speed is preempted obviates the need for a discussion of whether length is preempted.
To the extent that a discussion of length is instructive, however, the Court notes that the United States Supreme Court has expressly invalidated, on Commerce Clause grounds, regulation by the states of train length. Southern Pac. Co. v. Arizona, 325 U.S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915 (1945)(invalidating Arizona's train length limit law under the Commerce Clause, stating that "[t]he serious impediment to the free flow of commerce by the local regulation of train lengths and the practical necessity that such regulation, if any, must be prescribed by a single body having a nation-wide authority are apparent." Id. at 775, 65 S. Ct. 1515). At least one federal court of appeals has considered an enactment's burden on commerce in considering a FRSA preemption question. In Missouri Pac. Ry. v. Railroad Comm'n of Tex., 850 F.2d 264, 269 (5th Cir.1988), the court stated: "[w]e point out that we apply the burden on commerce analysis in this case not to make a constitutional decision but to emphasize the need for preemption: that is, we find valid federal preemption in part by emphasizing the burden on commerce created by the state regulations." Id. Similarly here, the fact that regulation of length has been held to violate the Commerce Clause is relevant to the preemption analysis.[7]
*656 d. Federal Air Brake Testing
Two federal regulations require the railroad to perform air brake testing. 49 C.F.R. § 232.12 and § 232.13. When a train sits idle for a period of less than two hours, it must perform a ten to twenty minute air brake test involving set up and release. 49 C.F.R. § 232.13. When a train is idle for two hours or more, it must perform a full-blown initial terminal air brake test pursuant to 49 C.F.R. § 232.12. This latter form of testing can take up to forty-five minutes. The performance of these federally mandated air brake tests causes CSXT to block crossings in both Plymouth and Wayne. (CSXT's Br. at 11, 12-13, 19-20, 24).
Defendants' position seems to be that nothing in the federal regulations requires CSXT to conduct the test while blocking a crossing. Defendants' proffered Affidavit of David H. Brickey, which CSXT has moved to strike, indicates that according to his interpretation of federal regulations, "[t]he railroad ... is given discretion to move a train distances up to one mile, so that the tests may be performed where there are no crossings which would be blocked during the testing process." (Atty. Gen.'s Exb. M, Brickey Aff. at ¶ 3). CSXT argues that the affidavit should be stricken because the Attorney General allegedly failed to disclose David Brickey as a witness while discovery was pending. The Attorney General's response reveals that an individual named Steven Brickey was disclosed in error and that it was as a result of a clerical error that the first name was not listed as David. Further, the Court is cognizant of the fact that Magistrate Judge Carlson allowed CSXT to depose witnesses not listed. Under these circumstances, the Court will not strike the Brickey Affidavit.
However, considering the affidavit does little to aid Defendants. The interpretation of federal regulations is a matter of law for the court to decide. Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 900 (7th Cir.1994)("[t]he meaning of federal regulations is not a question of fact, to be resolved by the jury after a battle of experts. It is a question of law, to be resolved by the court." Id.); see also Harbor Ins. Co. v. Continental Bank, 922 F.2d 357, 366 (7th Cir.1990); Specht v. Jensen, 853 F.2d 805 (10th Cir.1988)(en banc). Nothing in the plain language of the regulations indicates that CSXT has the discretion to move the train before conducting the air brake tests. Further, even assuming that the trains could be moved one mile before the air brake testing takes place, Defendants fail to suggest where CSXT could perform the tests without blocking other intersections.
Alternatively, Defendants assert that if CSXT blocks the intersection in excess of the five minute limitation to perform the federally mandated air brake test, that such a blockage would fall within one of the statute's exceptions. (CSXT Exb. 28, Charles Culver Tr. at 76-77, Exb. 10, Arton Tr. at 83). The state statute contains an exception for blocking which occurs due to an "unsafe condition." Interpreted in this way, the statute has the effect of regulating the performance of the air brake tests because it would require CSXT *657 to keep a detailed record of when and where the tests are performed so that it may escape liability under the Act. The federal regulations do not currently require CSXT to keep such a log. To the extent that the statute operates to regulate the performance of federally-mandated air brake testing, it is preempted by the FRSA.
e. Summary re: First Savings Clause
In sum, the Court finds that federal regulations regarding speed "cover the subject matter" of the state requirement. The state requirement has the effect of actually regulating speed, length, and the performance of air brake testing. The FRA regulations substantially subsume these areas. The federal regulations amply cover the issue of how fast or how slow a train can proceed through a grade crossing, based on the selected class of track. 49 C.F.R. § 213.9, 213.307. The regulations also set maximum train speed limits for different track curvatures and elevations. 49 C.F.R. § 213.57. The federal regulations also limit the class of track which can be laid down at a grade crossing. 49 C.F.R. § 213.347. Federal preemption of speed alone invalidates this statute. As noted, mathematically, speed and length cannot be separated.[8] Thus because the state statute has the effect of regulating speed, and federal regulation of speed covers the subject matter of the state requirement, a separate discussion of whether length is preempted is not necessary. To the extent that a discussion of length may be required, it is important to note that regulation of length carries with it substantial burdens on interstate commerce. Southern Pacific, 325 U.S. at 775, 65 S. Ct. 1515; Missouri Pacific. Ry., 850 F.2d at 269. Finally, the state statute has been shown to bear upon the performance of federal air brake testing, an area over which the Secretary has issued explicit regulations. 49 C.F.R. § 232.12-232.13. Accordingly, the state statute cannot survive under the first savings clause.
2. Second Savings Clause
Nor is the state statute sheltered from preemption under the second savings clause. That clause provides:
A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order (1) is necessary to eliminate or reduce an essentially local safety hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate commerce.
49 U.S.C. § 20106 (emphasis added).
The state statute does not fall within this exception. Where a state law has general, state-wide applicability, it is not considered to eliminate or reduce an essentially local safety hazard. Norfolk & W. Ry. Co. v. Public Util. Comm'n of Ohio, 926 F.2d 567, 571-72 (6th Cir.1991)(defendants "never disputed the statewide application of [the challenged] rule. On its face, the rule does not allow for any determinations of a local hazard and is explicitly inconsistent with the definition of a local safety hazard. Because [the rule] has statewide application, it is not within the second exception." Id.). See also, Easterwood, 507 U.S. at 675, 113 S. Ct. 1732 (noting that the state law negligence rule addresses all hazards caused by lack of due care, "not just those owing to unique local conditions." Id.); Herriman v. Conrail, Inc., 883 F. Supp. 303 (N.D.Ind. 1995)(state law is not a local safety hazard where the condition exists at numerous crossings throughout the state); Landrum v. Norfolk S. Corp., 836 F. Supp. 373 (S.D.Miss.1993)(local train speed ordinance applied to all crossings is not a local safety hazard). Because it is not designed to address a local safety hazard, the Court need not consider the other two aspects of this exception. The state statute cannot be saved by the second savings clause.
*658 In sum, to the extent that the state statute is viewed as regulating speed, length, and air brake testing, the statute is preempted by the FRSA.
D. Preemption under the Interstate Commerce Commission Termination Act
The Court recognizes the persuasive force of the State's argument that apart from having the effect of regulating speed, length, and air brake testing, that the statute could also be fairly characterized as requiring the railroad to make substantial capital improvements to upgrade its class of track or relocate its yards. Viewed in this way, the law does not affect speed, length, or air brake tests, but rather requires the railroad to undergo substantial renovations at the state's command. See Norfolk & W. Ry. Co. v. Oregon, 149 F.3d 1184, 1998 WL 381510 (6th Cir.1998)(unpublished)(distinguishing Plymouth I and remanding, noting that an Ohio ordinance which limits the amount of time a train can block a crossing to five minutes may not be preempted under FRSA where there may be a way to comply that does not impact railroad safety). To the extent the state law is viewed as having the effect of requiring the railroad to undergo substantial capital improvements, the Court finds that the law is preempted by the Interstate Commerce Commission Termination Act.
In 1995, Congress enacted the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. § 10101, et seq. Congress passed the ICCTA in 1995 in an effort to decrease regulatory controls over the railroad industry. The Act amended certain sections of Title 49 which governs the economic regulation of railroads. The Act, which became effective on January 1, 1996, abolished the Interstate Commerce Commission ("ICC") and created the Surface Transportation Board ("STB") which it vested with exclusive jurisdiction over-
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classification, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.
49 U.S.C. § 10501(b).
Several cases have held that this section preempts state law regulation of railroads in an economic sense. For example, in Soo Line R.R. Co. v. Minneapolis, 38 F. Supp. 2d 1096 (D.Minn.1998), the court held that the ICCTA preempted the city's authority to withhold demolition permits which the railroad sought in order to redevelop a certain rail yard. In so holding, the court reviewed section 10501(b) and noted that "it is difficult to imagine a broader statement of Congress' intent to preempt state regulatory authority over railroad operations." Soo Line, 38 F.Supp.2d at 1099. The court noted that "when section 10501(b) grants the STB exclusive jurisdiction over `transportation by rail carriers,' it logically includes the yard, property, facilities and any intermodal equipment used in connection with a railroad, or related to the movement of passengers or property." Id. Similarly, in Burlington N. Santa Fe Corp. v. Anderson, 959 F. Supp. 1288 (D.Mont.1997) the court held that the ICCTA preempted a Montana law which required the state to exercise jurisdiction over the "maintenance, closure, consolidation or centralization of railroad shipping facilities, stations and station agencies" within the state. Id. at 1291. The court reasoned that the ICCTA expressly preempted state economic regulation of railroad operations:
[S]tate regulation of the closure, consolidation or centralization of agencies has a direct and substantial effect on the field of economic regulation of railroad transportation. Thus, the state regulation at issue falls squarely in the preempted field of economic regulation, *659 and it affects the policy of deregulation of railroad transportation. The statutory language and accompanying legislative record evidence Congress' clear and manifest intent to occupy the entire field of economic regulation of rail transportation, including the regulation of railroad agencies.
Id. at 1296.
Finally, in City of Auburn v. United States, 154 F.3d 1025 (9th Cir.1998) the Ninth Circuit affirmed the STB's opinion that the ICCTA preempted a county's ability to review the environmental impact of proposed operations on the formerly inoperable Stampede Pass line. The railroad sought approval to reacquire and operate a portion of the line, which the state attempted to regulate. The Court of Appeals rejected reliance on the Act's legislative history because the Act itself explicitly granted the STB exclusive jurisdiction over the "construction, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located or intended to be located, entirely in one State." 49 U.S.C. § 10501(b). The court rejected the argument that only state economic regulation was preempted because cases interpreting the Act have been applied broadly. City of Auburn, 154 F.3d at 1030. The court recognized that in the case before it, the form of environmental regulation asserted by the state was essentially an economic regulation: "[I]f local authorities have the ability to impose `environmental' permitting regulations on the railroad, such power will in fact amount to `economic regulation' if the carrier is prevented from constructing, acquiring, operating, abandoning, or discontinuing a line." Id. at 1031. See also, CSX Transp., Inc. v. Georgia Pub. Serv. Comm'n, 944 F. Supp. 1573 (N.D.Ga.1996)(state regulation of railroad agency closings is preempted by the ICCTA).
To the extent the state law at issue here is viewed as requiring the railroad to undergo substantial capital improvements, such as upgrading its class of track, relocating its yards, or upgrading speed along its "wyes," it is preempted by the ICCTA, which vests exclusive jurisdiction in the STB over such matters. In short, if there is to be a limit on the amount of time that a train is permitted to block a crossing, it must come from the federal government.
E. Commerce Clause
The state statute also runs afoul of the Commerce Clause. The Commerce Clause gives Congress the power to "regulate Commerce with foreign Nations, and among the several States...." U.S. Const. Art. I § 8, cl. 3. The Commerce Clause, "even without implementing legislation by Congress is a limitation upon the power of the States." Great Atl. and Pac. Tea Co. v. Cottrell, 424 U.S. 366, 370-71, 96 S. Ct. 923, 47 L. Ed. 2d 55 (1976); see also Edgar v. MITE Corp., 457 U.S. 624, 640, 102 S. Ct. 2629, 73 L. Ed. 2d 269 (1982). Some state laws are valid, even though they impact interstate commerce. For example, a state law must be sustained if it "regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental ... unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970)(citing Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 443, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960)).
Despite the balancing test which the Supreme Court reiterated in Pike, in no event can a state law directly regulate interstate commerce. "The Commerce Clause ... permits only incidental regulation of interstate commerce by the States; direct regulation is prohibited." Edgar, 457 U.S. at 640, 102 S. Ct. 2629 (citing Shafer v. Farmers' Grain Co., 268 U.S. 189, 199, 45 S. Ct. 481, 69 L. Ed. 909 (1925)). In Edgar, the Court struck down, as a direct regulation on interstate commerce, the Illinois Business Take-Over Act which required "a tender offeror to notify the Secretary of State and the target company *660 of its intent to make a tender offer and the terms of the offer 20 days before the offer becomes effective." Edgar, 457 U.S. at 624, 102 S. Ct. 2629. The Court found that the law had a sweeping extraterritorial effect. The Court specifically noted that "if Illinois may impose such regulations, so may other States; and interstate commerce in securities transactions generated by tender offers would be thoroughly stifled." Id. at 642, 102 S. Ct. 2629. Similarly, in Shafer, the Supreme Court held that "a state statute which by its necessary operation directly interferes with or burdens [interstate] commerce is a prohibited regulation and invalid, regardless of the purpose with which it was enacted." Shafer, 268 U.S. at 199, 45 S. Ct. 481.
The state statute at issue here directly regulates trains on their tracks. In a case similar to the one at bar, the United States Supreme Court struck down an Arizona state statute which restricted the length of passenger and freight trains to a certain number of cars. Southern Pac. Co. v. Arizona, 325 U.S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915 (1945). The Court found that the purported safety justifications for the law were not supported on the record. Id. at 775, 65 S. Ct. 1515. The following language from the Court's opinion makes clear why that statute unduly burdened commerce:
The unchallenged findings leave no doubt that the Arizona Train Limit Law imposes a serious burden on the interstate commerce conducted by the appellant. It materially impedes the movement of appellant's interstate trains through that state and interposes a substantial obstruction to the national policy proclaimed by Congress, to promote adequate, economical and efficient railway transportation service. [citing the Interstate Commerce Act] Enforcement of the law in Arizona, while train lengths remain unregulated or are regulated by varying standards in other states, must inevitably result in an impairment of uniformity of efficient railroad operation because the railroads are subjected to regulation which is not uniform in its application.
Southern Pacific, 325 U.S. at 773, 65 S. Ct. 1515 (citation omitted).
The Court stressed the need for national uniformity:
With such laws in force in states which are interspersed with those having no limit on train lengths, the confusion and difficulty with which interstate operations would be burdened under the varied system of state regulation and the unsatisfied need for uniformity in such regulation, if any, are evident.
Id. at 773, 65 S. Ct. 1515.
The Fourth Circuit, in Kahn v. Southern Ry. Co., 202 F.2d 875 (4th Cir.1953), invalidated on Commerce Clause grounds a city ordinance which limited the amount of time a train could block a crossing to three minutes. The Court of Appeals noted that, as applied to moving trains, the result is to impermissibly limit the length of trains. Id. at 878. Further, the court stated, "if [the ordinance] was intended to apply to moving trains, then, in our opinion, the ordinance must be held to be invalid as contravening the commerce clause of the Federal Constitution." Id., (citing Southern Pacific, 325 U.S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915). The Kahn Court recognized that the Southern Pacific decision "was based in part upon the voluminous evidence as to the injurious effect of the statute upon interstate traffic and the relative dangers attendant upon the operation of long and short trains." Kahn, 202 F.2d at 879. After making this observation, the court stated:
Specific evidence of this kind is lacking in the pending case but it is nevertheless obvious that the regulation of the length of trains under a literal interpretation of the ordinances would result in an unconstitutional interference with the national commerce. No additional evidence is needed to show that the ordinances so construed come within the condemnation of the following passage from Southern Pacific ....
*661 If one state may regulate train lengths, so may all the others, and they need not prescribe the same maximum limitation. The practical effect of such regulation is to control train operations beyond the boundaries of the state exacting it because of the necessity of breaking up and reassembling long trains at the nearest terminal points before entering and after leaving the regulating state. The serious impediment to the free flow of commerce by the local regulation of train lengths and the practical necessity that such regulation, if any, must be prescribed by a single body having a nation-wide authority are apparent.
Kahn, 202 F.2d at 879, (quoting Southern Pacific, 325 U.S. 761, 775, 65 S. Ct. 1515, 89 L. Ed. 1915).
Here, as in Southern Pacific, if every state were to enact legislation limiting the amount of time a railroad could block a crossing, a substantial burden would be placed upon interstate commerce. Depending on the amount of time each state allows, the railroads would have to limit the length of its trains, increase the train's speed, or implement higher grades of track at different points along its interstate routes. The practical effect of the regulation here is, like in Southern Pacific, "to control train operations beyond the boundaries of the state." Id. at 775, 65 S. Ct. 1515; Seaboard Air Line Ry. Co. v. Blackwell, 244 U.S. 310, 315-16, 37 S. Ct. 640, 61 L. Ed. 1160 (1917)(invalidating a Georgia statute requiring trains to nearly come to a complete stop fifty feet from a grade crossing on the grounds that it constituted an unlawful direct regulation of interstate commerce); Kansas City S. Ry. Co. v. Kaw Valley Drainage Dist. of Wyandotte Co., Kansas, 233 U.S. 75, 34 S. Ct. 564, 58 L. Ed. 857 (1914)(railroad cannot be ordered by the state to remove railroad bridges or raise them to higher heights and noting that the state cannot invoke the "convenient apologetics of the police power" in order to justify "a direct interference with commerce among the states." Id. at 79, 34 S. Ct. 564.).
At the time Southern Pacific was decided several states had legislation either in effect or pending which would limit the number of cars a train could pull. Id. at 774, n. 3, 65 S. Ct. 1515. Similarly here, independent research has revealed that fifteen other states have laws which limit the amount of time a train can block a crossing. See, e.g., Arizona: A.R.S. § 40-852 (limiting time to 15 minutes with exceptions); Arkansas: A.C.A. § 23-12-1007 (limiting time to 10 minutes with exceptions); Georgia: Ga. Op. Att'y Gen. No. 70-58 (1970)(if railroad blocks a crossing for an unreasonable period of time, a public nuisance possibly occurs); Illinois: 625 ILCS 5/18c-7402 (limiting time to 10 minutes with exceptions); Indiana: IC 8-6-7.5-1 (limiting time to 10 minutes with exceptions); Kentucky: KRS § 277.200 (limiting time to 5 minutes with exceptions); Louisiana: LSA-R.S. 48.391-.392 (limiting time to 20 minutes with exceptions); Minnesota: M.S.A. § 219.383 (limiting time to ten minutes); Mississippi: Miss.Code Ann. § 77-9-235 (limiting time to 5 minutes); Missouri: V.A.M.S. 300.360 (limiting time to 5 minutes with exceptions); New York: NY Railroad § 53-c (limiting time to 5 minutes with exceptions); Ohio: Oh. St. § 5589.21 (limiting time to 5 minutes with exceptions); South Carolina: SC ST § 58-17-4080 (limiting time to 5 minutes); Texas: V.T.C.A. § 471.007 (limiting time to 10 minutes with exceptions); West Virginia: WV ST § 31-2A-2 (limiting time to 10 minutes with exceptions).[9]
Requiring substantial capital improvements as a form of compliance would directly *662 burden interstate commerce, and impermissibly subject railroads to differing obligations from state to state. See also Kassel v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662, 101 S. Ct. 1309, 67 L. Ed. 2d 580 (1981)(invalidating Iowa law barring use of trucks longer than sixty feet); Raymond Motor Transp. Inc. v. Rice, 434 U.S. 429, 98 S. Ct. 787, 54 L. Ed. 2d 664 (1978)(invalidating Wisconsin law barring operation of trucks in excess of sixty-five feet); Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S. Ct. 962, 3 L. Ed. 2d 1003 (1959)(invalidating Illinois law requiring use of certain types of rear fender mudguards).
This Court is mindful of the fact that the Michigan Court of Appeals in People v. Consolidated Rail Corp., 145 Mich.App. 707, 378 N.W.2d 581 (Mich.Ct.App.1985), held that the state statute at issue in this case did not violate the Commerce Clause as applied to "a single curve used by a single railroad." Id. at 714, 378 N.W.2d 581. The Court of Appeals was "unconvinced that the Commerce Clause should be applied to such local circumstances, which have little relevance to `the interests of the nation in an adequate, economical and efficient railway transportation service.'" Id., (quoting Southern Pacific, 325 U.S. at 783-84, 65 S. Ct. 1515). In Consolidated Rail, the court found Kahn unpersuasive on two grounds. First it noted that the argument that the statute imposed a length limitation on the trains coming around the curve was not persuasive because "Defendant has advanced no evidence that the state is somehow responsible for the curvature of the track." Id. at 714, 378 N.W.2d 581. This, the court contended, distinguished Consolidated Rail from Kahn, because the city ordinance in Kahn was coupled with another ordinance which limited a train's speed. "In combination, these ordinances amounted to a governmental limitation on the length of trains, contrary to the holding of Southern Pacific....." Consolidated Rail, 145 Mich.App. at 714, 378 N.W.2d 581. Further, the court noted that in Kahn, "the ordinances applied to all railroad companies and to all intersections within the city." Consolidated Rail, 145 Mich.App. at 714, 378 N.W.2d 581. The court noted that in the case at hand, "we have, at most, a de facto limitation on the length of defendant's trains at but one location, a restriction resulting not from the state's regulation, but from the curvature of the defendant's own track."
In sum, the court stated:
The burden on interstate commerce, relegated solely to the effect on defendant's operation at one curve in a single city, is so slight that the presumption of validity is enough to sustain the statute.... For the sake of completeness, we note that it is beyond doubt that the public safety, health and welfare often hinge on the amount of time taken by police officers, firemen and other personnel to arrive at the scene of a crisis. Nor can it be doubted that a train crossing at an intersection may pose an obstacle to such responses. The statute furthers these purposes, despite defendant's arguments to the contrary.
Id. at 715, 378 N.W.2d 581 (citation omitted).
Consolidated Rail is not controlling on the facts at issue here. The court in that case stressed that its analysis was based only on one curve. The instant case involves many intersections, and the statute has state-wide applicability.
This Court is mindful of the state's historical role in the regulation of its local highways. However, the state statute at issue here directly regulates railroads, either by affecting the speed of their trains, the length of their trains, the performance of their federally-mandated air brake tests, or by requiring them to undergo substantial capital improvements in upgrading their class of track, or relocating their rail yards. The state's power to regulate highway safety does not reach so far as to require the railroad to effect such substantial changes. The Court understands the frustrations that motorists feel when they are inconvenienced by delays at railroad *663 crossings. However, the Court finds that, under the law, any limitation on the amount of time a train can block a crossing must come from the federal government.
V. Conclusion
Being fully advised in the premises, having read the pleadings, and for the reasons set forth above, the Court hereby orders as follows:
Plaintiff's motion for summary judgment is GRANTED.
IT IS FURTHER ORDERED THAT Defendant City of Plymouth's motion for summary judgment is DENIED.
IT IS FURTHER ORDERED THAT Defendant Jennifer Granholm, Attorney General of the State of Michigan's motion for summary judgment is DENIED.
IT IS FURTHER ORDERED THAT Plaintiff's motion to strike the Attorney General's jury demand is DENIED AS MOOT.
IT IS FURTHER ORDERED THAT Plaintiff's motion to strike the Brickey Affidavit is DENIED.
SO ORDERED.
NOTES
[1] The Plymouth City Ordinance provided, "It shall be unlawful for any railroad company, its successors, assigns, or lessees, or for any officer, agent, or employee thereof, to obstruct free passage of any street or sidewalk within the City, by means of any railroad cars, trains, engines or locomotive for a longer period than five (5) minutes at any one time, nor shall successive trains['] movements be permitted to obstruct streets or highways until all vehicular traffic previously delayed has been cleared or a period of five (5) minutes has elapsed since the obstruction." Plymouth, Mich., Statute, chap. 129, § 10.51.
[2] A "grade crossing" is a place "where a railroad intersects another railroad or a roadway on the same level." WEBSTER's NEW WORLD DICTIONARY 585 (3d ed.1988).
[3] A bill pending in the Michigan House of Representatives would amend the state statute to substantially increase the amount of the fines. For example, instead of $500 per violation, the amount of the fine would increase to $5,000 for a third violation in a seven day period and $25,000 for a tenth violation in a seven day period. House Bill No. 4286.
[4] The Swift Rail Development Act of 1994 is codified as amended in scattered sections of 49 U.S.C.A.
[5] As for the adequacy of crossing signals, the Court held that the state statute was not preempted. CSXT offered two sources of preemption, the Highway Safety Act of 1973 and the Manual on Uniform Control of Traffic Devices. The Highway Act required states employing federal funds to upgrade crossings to conform with federal regulations. The regulations did not preempt state law because they merely "establish the general terms of the bargain between the federal and state governments: the States may obtain federal funds if they take certain steps to ensure that the funds are efficiently spent." Id. at 667, 113 S. Ct. 1732 The regulations "provided no affirmative indication of their effect on negligence law." Id. at 668, 113 S. Ct. 1732.
Similarly, the guidelines of the Manual did not preempt state law. The Court found it implausible that state law could be preempted by "an elliptical reference in a Government manual otherwise devoted to describing for the benefit of state employees the proper size, color, and shape of traffic signs and signals." Id. at 669, 113 S. Ct. 1732. The Manual itself stated that "[i]t is the intent that the provisions of the Manual be standards for traffic control devices installation, but not a legal requirement for installation." Id.
[6] d = vt. Distance = velocity × time. In this situation, D = the length of the train plus the width of the crossing. T = the time, which is fixed by the statute at 5 minutes. V = the speed of the train. Under this formula, length and speed are directly proportional. If the amount of time is limited to 5 minutes then the speed must increase as the length of the train increases in order for it to make it past the crossing in time. Similarly, if the train is shorter, the speed can be slower.
[7] CSXT contends also that federal law preempts any attempt by the state to regulate train length based on negative preemption. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 178, 98 S. Ct. 988, 55 L. Ed. 2d 179 (1978).
Under Ray, negative preemption lies where the failure of federal officials "affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute." Id. The Sixth Circuit has recognized that negative preemption applies under the FRSA. Norfolk & W. Ry. v. Public Util. Comm'n of Ohio, 926 F.2d 567, 570-71 (6th Cir.1991). In Norfolk & Western the Court of Appeals held that an Ohio requirement that railroads provide and maintain walkways on its bridges was preempted by the FRSA because the FRA addressed the issue of railroad bridge walkways and decided that a general bridge walkway was not necessary. See also Burlington N. & Santa Fe Ry. v. Doyle, 186 F.3d 790, 795-804 (7th Cir. 1999)(FRA decisions and actions addressing one-person crews preempted state statute requiring two person crews); Burlington N. R.R. v. Montana, 880 F.2d 1104 (9th Cir. 1989)(state requirement that trains have a caboose was preempted because the FRA addressed the caboose requirement and declined to require cabooses); Missouri Pac. R.R. v. Railroad Comm'n, 850 F.2d 264, 268 (5th Cir.1988)(same).
In each of the cases cited above, negative preemption was found after the federal regulator expressly addressed the same subject matter that the state attempted to regulate. In support of its argument that any state law regulation of train length is negatively preempted, CSXT relies on two sources. The first is a letter to the FRA from the National Transportation Safety Board ("NTSB") dated July 31, 1978 recommending that the FRA limit the length of trains moving hazardous materials. Pl.'s Exb. 26. It seems a stretch to say that declining to regulate the length of trains carrying hazardous material amounts to the FRA having considered the issue of train length generally.
The second source relied upon by CSXT is a 1986 report in which the FRA decided not to regulate cabooses. 15 Fed.Reg. 17,300. A review of that report reveals that train length was only mentioned in passing. The report cannot be interpreted as having considered and declined to regulate train length generally.
[8] See supra note 6.
[9] Two of the statutes have been held not to violate the Commerce Clause, albeit several years ago. See, e.g., People v. Indiana Harbor Belt R.R. Co., 102 Ill.App.3d 811, 58 Ill. Dec. 162, 430 N.E.2d 104 (Ill.App.1981); City of Lake Charles v. Southern Pac. Transp. Co., 310 So. 2d 116 (La.Ct.App.1975). But see, City of Cincinnati v. Luckey, 153 Ohio St. 247, 91 N.E.2d 477 (Ohio Sup.Ct.1950)(invalidating city ordinance restricting amount of time train can block a crossing to ten minutes as an invalid exercise of city's police power). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609297/ | 62 Wash. 2d 800 (1963)
384 P.2d 852
KENNETH J. FISHER, Appellant,
v.
THE CITY OF SEATTLE, Defendant,
STANDARD OIL COMPANY OF CALIFORNIA, WESTERN OPERATIONS, INC., Respondent.[*]
No. 36317.
The Supreme Court of Washington, Department One.
August 22, 1963.
Walsh & Margolis, by Robert J. Hall, for appellant.
Rosling, Williams, Lanza & Kastner, by Joseph J. Lanza, for respondent.
HUNTER, J.
This is an action brought by the appellant (plaintiff), Kenneth J. Fisher, to recover for injuries received due to the alleged negligence of the defendant (respondent), Standard Oil Company of California, Western Operations, Inc., and the city of Seattle.
*801 The sole question on this appeal is whether the plaintiff is barred from recovery under RCW Title 51, the Workmen's Compensation Act. RCW 51.24.010 permits the bringing of an action, provided the workman has been employed in extrahazardous work, "If the injury to a workman is due to negligence or wrong of another not in the same employ ..."
[1] Respecting personal injuries in extrahazardous employment, the Workmen's Compensation Act affords immunity to the employer only; it is not a bar to an action against a negligent third party. Greenleaf v. Puget Sound Bridge & Dredging Co., 58 Wn. (2d) 647, 364 P. (2d) 796 (1961).
The facts are not in dispute. The plaintiff was hired by Standard Stations, Inc. (Standard Stations herein) as a service station attendant for a station located in the city of Seattle. While in the act of opening the station early one morning, he turned on a switch controlling the oil burner and was injured in an explosion and fire which then occurred. The explosion and fire were caused by the igniting of gases which had generated and accumulated on an adjoining garbage and refuse dump and fill maintained by the city of Seattle. The plaintiff alleges his injuries occurred because of the negligence of the city of Seattle and Standard Oil Company of California, Western Operations, Inc. (Western Operations herein) in permitting the gas to enter the building.
Standard Oil Company of California (Standard of California herein), Western Operations, and Standard Stations are three separate corporations. The latter two are wholly owned subsidiaries of the former. In 1953, Standard of California and Standard Stations entered into an agreement whereby the latter, for a monthly fee of $1,250, undertook to employ station personnel, to operate designated stations, to keep such books and records as required by Standard of California, and to receive and turn over money from operations when requested. Standard of California *802 agreed to furnish all other needed personnel and to provide sufficient funds for station operations and personnel.
In 1956, Standard of California and Western Operations entered into a management agreement whereby the latter undertook, for a monthly fee of $10,000, to manage and operate substantially all of the former's physical properties, businesses, and associated services. Shortly thereafter, these three corporations agreed that all rights and obligations of Standard of California should be performed by Western Operations and that thereafter Standard Stations should look to that corporation in all respects in connection with the 1953 agreement.
The plaintiff set forth in an affidavit that, because he was hired and paid by Standard Stations, he was led to believe that only Standard Stations was his employer. He further stated that he was never informed he was working for Western Operations, that he knew nothing of the agreements between the three corporations, and that he did not know that Western Operations prepared Standard Station's paychecks and paid industrial insurance premiums for Standard Stations' employees.
Subsequent to the serving and filing of the plaintiff's complaint and Western Operations' answer, Western Operations moved for summary judgment. The plaintiff then made a cross motion for summary judgment for the purpose of striking Western Operations' affirmative defense that the plaintiff's action was barred by the Workmen's Compensation Act. The trial court denied the plaintiff's motion and granted Western Operations' motion on the basis that, by reason of the agency relationship existing between the three corporations, the plaintiff was an employee of Western Operations. From the entry of an order pursuant to this determination, the plaintiff appeals. The city of Seattle is not a party to this appeal.
The plaintiff contends that, since he was hired by Standard Stations and since he had no knowledge of its relation to Western Operations, Standard Stations only is his employer. He argues that disclosure of this relationship is *803 necessary otherwise the essential element of consent to his employment is missing.
Western Operations, on the other hand, contends that, by reason of the agreements between the three corporations, Standard Stations is its agent, and therefore the employment of the plaintiff by its agent, Standard Stations, created an employer-employee relationship between the plaintiff and Standard Stations' principal, Western Operations. In support of its position that Standard Stations was its agent, Western Operations has directed our attention to the complete dominion and control which it retained over the work being done by Standard Stations. It contends it is immaterial whether the plaintiff had knowledge of the relationships involved.
The stress which Western Operations places on its retention of control is directed toward whether Standard Stations is its agent. See Restatement, Agency (2d) § 220 (1958). The fact of this agency is important only insofar as the rule upon which Western Operations relies is applicable to the determination of this case. For the purpose of our determination, we assume that Standard Stations is the agent of Western Operations.
Western Operations relies upon the general rule
"... that an agent, who with authority express, implied, apparent or actual, employs help for the benefit of his principal's business, thereby creates the relationship of employer and employee between such help and his principal." 1 Schneider, Workmen's Compensation Text (Perm. ed.) § 233 (1941).
[2] This rule is derived from the common-law rules developed primarily for the purpose of respondeat superior or vicarious liability. (For a general history on the development of the rules of vicarious liability at common law see 8 Holdsworth, A History of English Law 472-482 (2d ed. 1937), and Holmes, Agency, 4 Harv. L. Rev. 345 (1891).) In applying these common-law vicarious liability rules to cases involving workmen's compensation issues, however, difficulty is often encountered. That difficulty is: The basic purpose for which the rules of vicarious liability were used *804 at common law is different from the purpose of the rules used in compensation law.
The rules of vicarious liability at common law were used generally for the adjustment of rights between the master and a third party due to activities carried on by the servant. Insofar as vicarious liability was concerned, it was possible thereunder to strike up a master-servant relationship despite the lack of consent on the part of the servant. See Restatement, Agency (2d) §§ 221, 222; Mechem, Outlines of the Law of Agency (3d ed. 1923) § 502. Thus, it made no difference whether there was a mutual agreement, as to their respective status, between the "master" and "servant." The important question was, instead, whether the "master" accepted and substantially controlled those activities of the "servant" which led to the third party's injury.
Under workmen's compensation law, however, the spotlight focuses on the employee, i.e., the servant, rather than on the employer, i.e., the master. The important question, here, is: Did the workman consent with the "employer" to the status of "employee"? Unlike the common law, compensation law demands that, in order to find an employer-employee relation, a mutual agreement must exist between the employer and employee.
Regarding the necessity of such an agreement in cases involving workmen's compensation issues as compared to cases involving issues of vicarious liability, 1 Larson, Workmen's Compensation Law § 47.10 (1952) states:
"...
"The reason for the difference between the two concepts is readily explained by the difference between the nature of the two liabilities involved. The end product of a vicarious liability case is not an adjustment of rights between employer and employee on the strength of their mutual arrangement, but a unilateral liability of the master to a stranger. The sole concern of the vicarious liability rule, then, is with the master: did he accept and control the service that led to the stranger's injury? If he did, it is of no particular importance between him and the stranger whether the servant enjoyed any reciprocal or contractual rights vis-a-vis the master. Accordingly, the Restatement *805 of Agency says plainly that the master must consent to the service, but nowhere requires that the servant consent to serve the master or even know who he is.
"Compensation law, however, is a mutual arrangement between the employer and employee under which both give up and gain certain things. Since the rights to be adjusted are reciprocal rights between employer and employee, it is not only logical but mandatory to resort to the agreement between them to discover their relationship. To thrust upon a worker an employee status to which he has never consented would not ordinarily harm him in a vicarious liability suit by a stranger against his employer, but it might well deprive him of valuable rights under the compensation act, notably the right to sue his own employer for common-law damages...."
It is obvious from the above discussion that, under the same set of facts, an employer-employee relation may or may not exist depending upon the purpose for which the determination is desired. Thus, a workman might be deemed an "employee" for the purpose of the vicarious liability of a master to a third party while, under the same facts, he may not be an "employee" for purposes of workmen's compensation issues.
The reasoning in the "lent servant" situation is applicable to the present case. In these situations, it is a well-established rule that an employee cannot have an employer thrust upon him against his will or without his knowledge. Barney v. Anderson, 116 Wash. 352, 199 P. 452 (1921); 3 Schneider, Workmen's Compensation Text (Perm. ed.) § 782.
"Servant lent or hired to another. The general servant of one person may be lent to, and become the servant of, another by submitting himself to the direction and control of the other with respect to a particular transaction or piece of work ... However, such a relation between the borrower and the servant is not established unless it appears that the servant has expressly, or by implication, consented to the transfer of his services to the new master, and unless the lender surrenders and the borrower assumes the power of supervision and control." (Italics ours.) 56 C.J.S., Master and Servant § 2 (d) (2).
*806 In discussing the requirement that there be consent by an employee to a change in employment relations, Justice Cardozo, in Murray v. Union R. Co. of New York City, 229 N.Y. 110, 127 N.E. 907 (1920), stated:
"... We do not doubt that the same man may be in the general employment of one master and the special employment of another. [citations omitted] But employment, like any other contract, presupposes understanding. The new relation cannot be thrust upon the servant without knowledge or consent. [citations omitted] He must understand that he is submitting himself to the control of a new master. We are not concerned at the moment with cases in which the rights of third persons are involved. We speak of cases where the parties to the disputed relation are the parties to the controversy. Understanding may be inferred from circumstances, but understanding there must be. Common-law rights and remedies are not lost by stumbling unawares into a new contractual relation. There can be no unwitting transfer from one service to another."
Also, see, 1 Larson, Workmen's Compensation Law § 48.10 (1952); Stroud v. Zuzich, 271 S.W. (2d) 549 (Mo., 1954); Quick v. Allegheny Constr. Equip. Co., 361 Pa. 377, 65 A. (2d) 238 (1949); Crawford v. Duluth, Missabe & Iron Range R. Co., 220 Minn. 225, 19 N.W. (2d) 384 (1945).
[3] We hold that, in cases involving the issue whether under Washington's workmen's compensation laws there is an employer-employee relation, such a relation cannot exist without the consent of the workman.
The plaintiff, in the instant case, filed an affidavit stating he had no knowledge of the agreements or relation between Standard Stations and Western Operations; he believed his employer to be Standard Stations only. There is no indication in the record, that he, in any way, consented to an employee relationship with Western Operations. Thus, the trial court erred in granting summary judgment to Western Operations and in denying the plaintiff's motion for summary judgment made for the purpose of striking Western Operations' affirmative defense.
Western Operations has relied on the case of Welden v. Skinner & Eddy Corp., 103 Wash. 243, 174 P. 452 (1918). *807 In that case, Skinner & Eddy agreed with an engineering firm for the latter to construct certain buildings for the former. The plaintiff was hired as a carpenter by the engineering firm and was injured when a galvanizing tank, located on Skinner & Eddy's property, exploded. The plaintiff brought a suit against Skinner & Eddy, under the compensation act, on the theory he was the employee of the engineering firm and not Skinner & Eddy. Looking to the contract between the engineering firm and Skinner & Eddy, this court found that Skinner & Eddy retained control over the work being performed. As a result of this control, it was held that the engineering firm was an agent of Skinner & Eddy, and not an independent contractor, and that the plaintiff was therefore Skinner & Eddy's employee by reason of this agency.
The Skinner & Eddy case was determined on the basis of the common-law rules relating to vicarious tort liability, as discussed above. In the instant case, the plaintiff has challenged these rules; he contends that, for Workmen's Compensation law purposes, a workman must consent before the relation of employer-employee comes into existence. The issue of consent was not before this court in the Skinner & Eddy case, and the court did not therefore consider it. Thus, that case is not controlling on the issue now before us.
In addition, Western Operations cites Cimorelli v. New York Central R. Co., 148 F. (2d) 575 (6th Cir., 1945), to illustrate the principle that one may become an employee of another although his contract is not directly made with such person. This case, like the Skinner & Eddy case, does not consider the issue of consent but applies the common-law test relating to the retention of control. Like the Skinner & Eddy case, it, too, is not applicable or controlling. Western Operations also cites St. Claire v. Minnesota Harbor Ser. Inc., 211 F. Supp. 521 (D.C. Minn., 1962). This case, however, does not support their position by reason of the fact that it recognizes the rule, which we have used as a basis for our determination in the instant case, that *808 one may not be thrust into an employee status without his consent.
The order granting summary judgment for Western Operations is therefore reversed, and the cause is remanded to the trial court with instructions to grant the plaintiff's motion for summary judgment and to proceed with a trial on the merits.
OTT, C.J., HILL, ROSELLINI, and HALE, JJ., concur.
NOTES
[*] Reported in 384 P. (2d) 852. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609299/ | 384 P.2d 484 (1963)
Thomas L. BERRY, doing business as the Quality Repair Dental Lab and the Fit-Rite Denture Material Sales Laboratory, George S. Snyder, doing business as the Fit-Rite Denture Material Sales Laboratory, Plaintiffs-Appellants,
v.
Earle E. KOEHLER, Commissioner of Law Enforcement, State of Idaho, Frank L. Benson, Attorney General of the State of Idaho, Edward Babcock, Prosecuting Attorney of Twin Falls County, and William C. Roden, Prosecuting Attorney of Ada County, Defendants-Respondents.
No. 9196.
Supreme Court of Idaho.
August 12, 1963.
*485 Elam, Burke, Jeppesen & Evans, Vernon K. Smith, Boise, for appellants.
Frank L. Benson, Atty. Gen., Boise, Samuel Kaufman, Jr., Sp. Asst. Atty. Gen., Boise, for respondent.
SMITH, Justice.
The opinion of this Court filed April 17, 1963, is withdrawn and this opinion is substituted therefor.
This Appeal No. 9196 arose after remittitur of the same cause heretofore before this Court as Appeal No. 8813, Berry v. Koehler, 84 Idaho 170, 369 P.2d 1010. The remittitur directed the trial court to find, conclude and enter its judgment in conformity with the views expressed both in the opinion on the original hearing filed June 2, 1961, and in the opinion on rehearing filed March 23, 1962, added to the original opinion.
The trial court upon remittitur entered amended findings of fact, conclusions of law, and judgment; also entered an order denying appellants' objections to portions of such findings, conclusions and judgment.
Appellants perfected an appeal from both the judgment and the order, and (quoting from the notice of appeal) "from the whole of such Amended Findings of Fact, [and] Conclusions of Law."
Appellants on this appeal, No. 9196, by their assignments of error contend that the amended findings of fact and conclusions of law entered by the trial court do not conform to the mandate upon remittitur of Appeal No. 8813.
The facts remain unchanged, and are as recited in Berry v. Koehler, 84 Idaho 170, 369 P.2d 1010, Appeal No. 8813.
For convenient reference we set forth the basic law involved in this proceeding, and shall review the findings and conclusions of the trial court and the holdings of this Court, in the light of appellants' assignments of error.
I.C. § 54-901, as amended, reads:
"54-901. Definition Practice of dentistry. The practice of dentistry is the doing by one person, for a direct or indirect consideration, of one or more of the following with respect to the teeth, gums, alveolar process, jaws, or adjacent tissues of another person, namely:
"Examining for diagnosis, treatment, extraction, repair, replacement, substitution, or correction;
"Diagnosing of disease, pain, injury, deficiency, deformity or physical condition;
"Treating, operating, prescribing, extracting, repairing, taking impressions, fitting, replacing, substituting, or correcting;
"Cleaning, polishing, or removing stains or concretions, or applying topical medication;
"Administering anaesthetics or medicaments in connection with any of the foregoing.
"The doing of any of the foregoing acts with respect to dental prosthetic appliances which requires or necessitates the presence, aid, assistance or cooperation of the person intended to *486 be the user or wearer of such dental prosthetic appliance is hereby specifically defined as practicing dentistry and is not mere mechanical work upon inert matter in a dental laboratory as the term is used hereafter in this act." (Emphasis supplied.)
The emphasized portion of the foregoing section of the statute was added by S.L. 1957, ch. 81, § 1.
In the original appeal, Berry v. Koehler, 84 Idaho 170, 369 P.2d 1010, Appeal No. 8813, this Court pointed out that the trial court held, on the authority of Berry v. Summers, 76 Idaho 446, 283 P.2d 1093:
"* * * that appellants had the right to; (1) reline denture plates; (2) repair broken denture plates; (3) replace artificial teeth in denture plates; (4) duplicate denture plates; (5) make transfers of false or artificial teeth, strictly within the methods outlined by appellants by their complaint, and that S.L.1957, ch. 81, was void and unenforceable against them, insofar as it prohibited their performing such services as outlined, and particularly from doing `relines'. The decree [of the trial court] enjoined the appellants generally from examining into the mouth of the wearer of a prosthetic appliance, for purpose of diagnosis, treatment, repair or replacement, substitution or correction; from diagnosing or prescribing; from taking impressions; from fitting, adjusting or correcting dentures in the wearer's mouth; and from making new teeth using impression trays, or using wearer's old teeth for the tray in taking such impressions. Appellants were further enjoined from advertising their willingness or ability to do any of the matters thus enjoined."
On appeal No. 8813, this Court held that the redefinition of the practice of dentistry, to include the doing of certain acts with respect to dental prosthetic appliances, which require the presence, aid, assistance, or cooperation of the person intended to be the user or wearer, was within "the power and authority of the legislature to adopt, and reasonably tends to secure to the public further protection from diagnosis, prescription or treatment by unqualified practitioners," and hence was not violative of the Federal Constitution, Amendment XIV, and Idaho Const. Art. 1, § 13, as depriving appellants of a valuable property right without due process of law. Upon remittitur the trial court, as directed, found in favor of the constitutionality of I.C. § 54-901, as amended, S.L.1957, ch. 81.
Appellants' assignments, which we deem cogent, relate to their objections to certain findings and conclusions, and to portions of the judgment, of the district court.
Appellants object to the portion of Amended Finding of Fact No. IV, reading:
"In the performance of their services which comprise repairing, relining and making new dentures, it is not required or necessary that these technicians ever see the wearer of the dentures nor is the wearer's aid, assistance or cooperation necessary."
Appellants object to portions of Amended Finding of Fact No. VII, reading:
"When a customer comes into one of the plaintiffs' laboratories he ordinarily does not ask for a specific service but complains of some difficulty with his dental device, * * *. Plaintiffs, or their employees, examine the customer orally [verbally] as to his complaint, learn the history of the appliance, examine the appliance itself, examine the appliance in the customer's mouth and thereupon diagnose the difficulties of the customer with regard to his dental device and advise and prescribe for the customer.
"* * * the technician * * * directs and supervises the wearer in every step of the impression procedure which is absolutely necessary in the relining process. That in dealing directly with the public it is necessary and required that the wearer of the teeth be present and aid, assist and cooperate.
*487 "* * * That as in the case of the relining process, the impression taken for the purpose of making new teeth cannot be undertaken or accomplished by plaintiffs without the presence of the wearer of the teeth or without his aid, assistance or cooperation."
Appellants object to all of Amended Finding of Fact No. VIII and Conclusions of Law Nos. V and VI "in that the activities which respondents claim require the aid, assistance or cooperation of the wearer, are not in many instances services `to be performed on the appliance' itself and which require the presence, aid or assistance of the wearer." As an example, appellants object to the portion of Finding of Fact No. VII intended to prohibit them from using carbon paper or indicator paste to check the occlusion of the denture with opposing teeth, as well as obtaining the wearer's observation or opinion as to feel and fit, and in making adjustment on the denture until it fits properly.
Appellants object to a portion of Finding of Fact No. IX reading:
"That in taking impressions for relining dentures or making new dentures, or in directing the wearer in the manner of taking such impressions, and in examining or fitting and adjusting within the mouth new, relined or repaired dentures, the dental technician impliedly holds out to the public that he possesses such scientific knowledge and medical training * * *."
Appellants object to Amended Conclusion of Law No. IV, reading:
"That the 1957 amendment to Section 54-901, Idaho Code, being H.B. 31, Chapter 81, Session Laws of 1957, neither enlarges or restricts the field of practice of the dental technician or mechanic as it has existed under prior law. That at no time since the inception of the Dental Practice Act in the State of Idaho have dental technicians or mechanics been permitted to work upon, examine, diagnose or prescribe with relation to living tissue of the patient, such activities all being clinical as opposed to mechanical work and the present amendment, while recognizing the field of activities of the dental technician or mechanic in performing purely mechanical work upon prosthetic appliances, does no more than limit, as did the prior law, such services to mere mechanical work and proscribes only the doing of that work or the performance of those services which require the presence, aid, assistance or cooperation of the wearer or user of the prosthetic appliance. That when the presence, aid, assistance or cooperation of the user or wearer of such prosthetic appliance is required or necessitated then the service of the technician necessarily goes beyond mere mechanical work upon inert matter and involves the performance of clinical work relating to living tissue of the wearer, which work or service the law requires may be performed only by a licensed and qualified dental practitioner."
Appellants object to Paragraph 2 of the Judgment, entered upon remittitur, which reads:
"That plaintiffs, their agents and employees, are permanently enjoined and restrained from performing any acts or services in connection with dental prosthetic appliances which require or necessitate the presence, aid, assistance or cooperation of the wearer or user of such appliances and in particular, plaintiffs, their agents and employees are permanently restrained and enjoined from examining the mouth of the wearer of prosthetic appliances or examining such appliances in the wearer's mouth for the purpose of diagnosis, treatment, repair, replacement or correction; from taking impressions of the mouth or within the mouth for the purpose of relining dentures or making new dentures or molds for new dentures, whether such impressions be taken or made by plaintiffs, their *488 agents or employees themselves, or by the wearer of the teeth under the supervision or direction of the plaintiffs, their agents or employees; from fitting, adjusting or correcting a prosthetic appliance in the wearer's mouth or diagnosing the necessity for such corrections with the assistance of carbon paper, indicator paste or visual observation of the appliance in the mouth of the wearer."
Appellants contend that such paragraph of the Judgment should be replaced by a paragraph to read:
"Dental mechanics or technicians are not prohibited by this amendment from pursuing their occupation, provided the services to be performed on the appliance do not require or necessitate the presence, aid, assistance or cooperation of the wearer in the performance of such service."
Generally, in their Assignment of Error No. IX, appellants contend that the district court should find, conclude and adjudge in such a way that the rights of appellants are protected in accordance with this Court's statements and conclusions in Berry v. Koehler, 84 Idaho 170, 369 P.2d 1010.
In Berry v. Koehler, supra, this Court pointed out, while the Dental Practice Act, by I.C. § 54-930, permitted the performance, by one not a licensed dentist, of mere mechanical work upon inert matter in a dental laboratory, that I.C. § 54-901, as amended, S.L.1957, ch. 81, limited such activities, as regards dental prosthetic devices, to those services which "do not require the presence, aid, assistance or cooperation of the user." The Court in such decision further stated:
"* * * The object of such legislation is to prohibit one not specifically trained in the field of dentistry from in any way diagnosing or treating in the dental field, and to limit this field to those who, by reason of the extensive training required for licensing, the legislature has deemed qualified under the standards established.
"* * * By the amendment, the legislature has raised a wall to prevent any possibility or tendency on the part of dental technicians to prescribe for the user of prosthetic appliances, or to diagnose or treat in a field for which they have not been trained. The amendment further tends to avoid the possibility of an assumption by such user that he is getting anything more done for him than purely mechanical work on the appliance. In other words, the user would not likely assume that he was receiving diagnosis, prescription or treatment by one capable in those fields.
"Also, the amendment is designed to prohibit technicians from obtaining the aid, assistance or cooperation of the user of a prosthetic appliance in performance of mechanical work upon it, thereby to lull the user, into the false sense of security as to his dental health that reasonably could obtain if he actively participated with the technician under circumstances tending to approximate a doctor-patient situation."
Continuing, this Court pointed out that the holding in Berry v. Koehler, supra, Appeal No. 8813, was coextensive with and included within the holding of Berry v. Summers, 76 Idaho 446, 283 P.2d 1093, in the following language:
"Here, the dental mechanics or technicians are not prohibited by this amendment from pursuing their occupation, provided that the services to be performed on the appliance do not require or necessitate the presence, aid, assistance or cooperation of the wearer in the performing of such service. They may reline denture plates, repair broken denture plates, replace artificial teeth in denture plates, duplicate denture plates, and make transfers of false or artificial teeth, or any other of the mechanical services that they may desire to do, provided they do not violate the provisions of the instant act [I.C. § 54-901, as amended by the 1957 *489 amendment], which activities are coextensive with, and included within the purview of our holding, in Berry v. Summers, supra."
Appellants in Berry v. Koehler, supra, Appeal No. 8813, on rehearing, sought in effect a declaratory judgment definitive of the activities permitted by I.C. § 54-901, as amended. Again, this Court pointed out that while the 1957 amendment limited the services of the dental technician or mechanic to work on prosthetic appliances "which does not require the presence, aid, assistance or cooperation of the user," it did not prohibit the normal business transactions with a customer. Speaking further of the meaning of prohibition of the 1957 amendment, this Court said:
"* * * Such addition to the definition of what constitutes the practice of dentistry pertains to the presence, aid, assistance or cooperation of the user while performing the service on the prosthetic device itself. It cannot be said that it would prohibit the technician from conducting the normal business transactions with his customer or user of the appliance, or from prohibiting the technician from having the user try the device after the technician has serviced it and again having further services performed on it. It is the examining within the mouth, fitting within the mouth, or taking the impression within the mouth of the user that is proscribed by the 1957 Act. (Emphasis supplied.)
* * * * * *
"The present enactment cannot be said to enlarge the field of practice of the dental technician or mechanic, and at no time have they been permitted to work upon, examine, diagnose, or prescribe, on living tissue of the patient."
The definition of the practice of dentistry places a fence around the technician; it precludes him from examining, or performing services upon the prosthetic appliance for purposes of diagnosis (which includes the fitting of the appliance), or treatment in any respect. He can do the mechanical work upon the appliance, but the results of his work, such as for example, whether the appliance fits, must not require his examination for diagnosis, his diagnosing, or his treatment. The decision as to whether the appliance is satisfactory to the wearer, for whatever reason the wearer desires the service, must strictly be that of the wearer himself.
This Court must uphold the finding and judgment of the trial court if it is capable of being upheld on any theory. Heck v. Heck, 63 Cal. App. 2d 470, 147 P.2d 110; Campbell v. Bauer, 104 Cal. App. 2d 740, 232 P.2d 590; Formosa Corp. v. Rogers, 108 Cal. App. 2d 397, 239 P.2d 88; School District No. 2 in Fremont County v. Brenton, (Colo.), 137 Colo. 247, 323 P.2d 899; Telfer v. School Dist. No. 31 of Blaine County, 50 Idaho 274, 295 P. 632; Clark v. Clark, 58 Idaho 37, 69 P.2d 980; Occidental Life Ins. Co. v. Thomas, (C.C. 9th), 107 F.2d 876; 5 C.J.S. Appeal and Error § 1464(1).
It is in the areas of examination for diagnosis, diagnosing, and treatment that the findings and judgment of the trial court prohibit the performance of services by appellants, because I.C. § 54-901, as amended, prohibits appellants' performance thereof. The trial court's Amended Findings of Fact in Appeal No. 9196 are in accord. Such aspect of the findings include the specific instances to which appellants strenuously object, i. e., as an example, the prohibition of the use of carbon paper and indicator paste in their work. Such prohibition, however, extends to the use of such indicators as concerns aspects of examination for diagnosis, diagnosing, or treatment by the technician.
We therefore affirm the amended findings of fact, the amended conclusions of law and the judgment entered upon the prior remittitur in the matter of Appeal No. 8813.
Costs to respondents.
KNUDSON, C. J., and McQUADE, McFADDEN and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1549851/ | 32 F.2d 876 (1929)
GRAY
v.
HOPKINS-CARTER HARDWARE CO. et al.
REESE
v.
SAME.
No. 5515.
Circuit Court of Appeals, Fifth Circuit.
May 31, 1929.
*877 H. H. Taylor and Geo. D. Ford, both of Miami, Fla., for appellant.
Lloyd C. Hooks, of Miami, Fla., for appellees Hopkins-Carter Hardware Co., Coconut Grove Bt. Wks., Biscayne Tent & Awn. Co., Phillips Hdw. Co., and Elco Works.
Warren S. Reese, of Miami, Fla., for cross-appellant.
J. C. Morcock, of Miami, Fla., for appellee and cross-appellee J. Frank Knorr.
Lloyd C. Hooks, of Miami, Fla., for other cross-appellees.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
BRYAN, Circuit Judge.
This is a contest over the distribution of proceeds derived from the sale of the gas yacht Lois. The amount realized at the sale, $7,600, was not sufficient to pay in full liens asserted against the yacht. Libels were filed by Norman Sweeting, J. Frank Knorr, the Hopkins-Carter Hardware Company, Coconut Grove Boat Works, Biscayne Tent & Awning Company, and the Elco Works. The libel of Sweeting was partly for seaman's wages and partly for necessary supplies, and the libels of the others above named were for necessary supplies and material. The yacht was claimed by its owner, who secured its release from the various libels by giving bonds in accordance with the provisions of 28 USCA § 754, and Admiralty Rule 12, and filed answers denying the averments of the several libels. The aggregate of the amounts claimed by these libels, to secure payment of which bonds had been given, was approximately $5,400, of which about $3,500 was claimed by the Elco Works. While the issues thus raised remained undetermined, stipulations were entered into between the owner and the above-named libelants by which it was agreed that the bonds for the release of the yacht should be canceled and the sureties thereon discharged, and that such libelants should have final decrees for the amounts claimed by them. The surety in the Elco Works case had been required to strengthen his bond by a pledge of collateral security which it was provided should be released. The stipulations were all made subject to the approval of the court, and on the same day the court entered the final decrees that had been agreed upon.
It was under these decrees that the sale was made. At the time the stipulations for the release of the bonds and the sureties thereon were entered into, the yacht had been seized and was being held by the marshal under a libel filed by Eric Breding for seaman's wages, and continued to be so held up to the time of the sale, in accordance with a provision contained in each of the stipulations. Within a few days after the sale, Breding obtained a decree for $106.65, the amount of his claim, and Cyrus W. Gray and the Phillips Hardware Company, by petitions of intervention under admiralty rule 42, each claimed an interest in the proceeds in the registry of the court. Gray claimed under a mortgage on the yacht for $5,900 which he had acquired prior to its release on *878 the several bonds. He conceded that the claims of Breding, Knorr, the Hopkins-Carter Hardware Company, Coconut Grove Boat Works, and Biscayne Tent & Awning Company were all entitled to priority over his claim, and prayed that, after those libelants were paid in full, the balance of the fund in court be next applied to the satisfaction of his mortgage lien. Gray's petition made no reference to the Sweeting libel, but it attacked the libel of the Elco Works on the ground that the lien therein asserted against the yacht had been lost as a result of the release of the yacht on bond, and was not restored by virtue of the subsequent agreement with the owner and the consent decree. The Phillips Hardware Company's claim was for $271.75, and was based on material supplied to the yacht. The lien created thereby was first in point of time; it was acquired more than a year before the first libel was filed, about 18 months before the date of Gray's mortgage, and more than 2 years before the filing of this petition of intervention, which disclosed no excuse for the delay. The claims of Gray and the Phillips Hardware Company were sustained by undisputed evidence before the commissioner, to whom all pending claims were referred by order of court for a report as to the validity and priority or rank of the several liens asserted against the yacht.
The commissioner filed his report in obedience to this order. After he had done so, but before final decree, Warren S. Reese filed an intervening petition, by which he sought to establish a lien for a reasonable attorney's fee upon the fund in the registry of the court. Reese alleged that, as proctor for the owner, he filed answers to several of the libels and prepared bonds for release of the yacht. It appears from his petition that he had ceased to represent the owner before the compromise settlement was made which resulted in the withdrawal of the answers and the consent decree of sale; and it further appears from the record that he was proctor for Breding both before and after the decree of sale, and had notice of the proceedings before the commissioner.
A final decree of distribution was entered upon the report of the commissioner. By that decree it was ordered: First, that the claims of Breding and Sweeting be paid in full; second, that there should be paid, in full if the balance was sufficient, or pro rata if it was not, the claims of Knorr, the Hopkins-Carter Hardware Company, Coconut Grove Boat Works, Biscayne Tent & Awning Company, the Elco Works, and the Phillips Hardware Company; and third, that, if there was any balance left over, it should be paid to Gray on account of his claim. Reese's petition was dismissed.
The case comes here on an appeal by Gray and a cross-appeal by Reese. The allowance to Breding for seaman's wages is not questioned, and as to him the decree was manifestly correct.
Gray faintly suggests error in the priority given by the decree to Hopkins-Carter Hardware Company, Coconut Grove Boat Works, and the Biscayne Tent & Awning Company, but, in our opinion, he has estopped himself to assume that position by expressly conceding in his petition the priority of their liens over his claim. The two remaining libelants are Sweeting and the Elco Works, and Gray has not estopped himself or waived his right to insist that his claim is entitled to priority of payment over the liens asserted by them.
We are of opinion that Sweeting and the Elco Works lost their liens on the yacht upon the giving and approval of the statutory bonds authorized by 28 USCA § 754. It is a general rule that such a bond is a substitute for the vessel, and the vessel is thereafter discharged and freed from the liens involved in the suit. The Palmyra, 12 Wheat. 1, 6 L. Ed. 531; United States v. Ames, 99 U.S. 35, 25 L. Ed. 295; The Haytian Republic, 154 U.S. 118, 14 S. Ct. 992, 38 L. Ed. 930; 1 Rawle C. L. 430.
Upon the release of the yacht on bond, Gray's mortgage was no longer subject to the liens of Sweeting and the Elco Works, and could not be displaced without his consent by an agreement between the owner and the libelants. It does not follow that the sale under the consent decree was void. In our opinion, the agreement to surrender the bonds was binding upon the owner to the extent of his interest in the yacht. It results from this view that Gray's lien is entitled to priority over the liens of Sweeting and the Elco Works.
The lien of the Phillips Hardware Company was barred by the state statute of limitations, Florida Revised General Statutes (1920) § 3530; and this would be sufficient under the decision of the Circuit Court of Appeals for the Second Circuit in Nolte v. Hudson Navigation Co., 297 F. 758, to render it unenforceable in a suit in admiralty. We do not find it is necessary either to follow or to reject that decision, as we think that the long delay, when considered in connection with the creation of intervening innocent liens, was such as to constitute laches *879 under the settled admiralty law. The Key City, 14 Wall. 653, 20 L. Ed. 896. The hardware company made no effort to enforce its lien for more than 2 years after it had accrued. There is more involved than the mere lapse of time; for in the meanwhile other liens had accrued and were being enforced by libels, and Gray's mortgage was accepted under circumstances that would not reasonably lead to the belief that a lien as old as this one existed.
Gray, as the holder of a nonmaritime lien, had an interest in the proceeds of sale that remained after the payment of valid existing maritime liens, and therefore was entitled to raise the defense of laches. The ruling in the Cora P. White (D. C.) 243 F. 246, is not to the contrary. In that case a creditor who was held to have no lien upon the vessel was denied the right to interpose the defense of laches on the ground that the fund in court was insufficient to discharge uncontested maritime liens. It follows that in our opinion the claim of the Phillips Hardware Company was barred by laches, and it was error to allow it.
The claimant Reese, if it be conceded for the moment that he ever had a maritime lien, lost it by failure to present and prove it up before the commissioner. Reese, as proctor, first for the owner and later for one of the libelants, was thoroughly familiar with the proceedings, and had no excuse to postpone the presentation of his claim until after testimony had been taken by the commissioner upon disputed questions. Moreover, his claim for a fee as proctor for the owner did not constitute a lien on the yacht or give him the right to share in the proceeds of sale. An attorney has a general or retaining lien on papers, documents, securities, or money coming into his possession in the course of his employment, but he has no lien on property involved in the litigation in which he acts as attorney for a party defendant. 2 Rawle C. L. 1063, 1073. After the payment of Gray's claim, Sweeting and the Elco Works are entitled to share in the residue of the fund. As between these two libelants, Sweeting has priority for that part of his lien which was allowed as seaman's wages, and then the two have liens of equal dignity upon any surplus which may still remain undistributed in proportion to the amounts of their respective liens for supplies.
Reese takes nothing by his cross-appeal. The decree is reversed on Gray's appeal, and the cause remanded for further proceedings not inconsistent with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1294194/ | 118 Cal.App.2d 883 (1953)
257 P.2d 765
ARMINEH HAYES, Respondent,
v.
FINANCIAL INDEMNITY COMPANY, Appellant.
Docket No. 6.
Court of Appeals of California, Appellate Department, Superior Court, San Bernardino.
May 25, 1953.
Taylor Peterson for Appellant.
Wright, Wright, Green & Wright, Loyd Wright, Dudley K. Wright and Loyd Wright, Jr., for Respondent.
MITCHELL, J.
This is an appeal from the judgment of the Municipal Court of San Bernardino Judicial District in an action brought to recover from an insurance carrier the *884 loss sustained by the plaintiff when her automobile was damaged by being upset.
The automobile was upset while being operated by plaintiff's minor son who had no driver's license.
The main question presented on this appeal is this: "Did the unauthorized use of the plaintiff's automobile by the plaintiff's minor son constitute theft?"
The plaintiff was the owner of an automobile, upon which she purchased from the defendant a policy of insurance.
In this policy the defendant agreed to reimburse the plaintiff for "Loss of or damage to the automobile except by collision or upset but including fire, theft and windstorm."
Other than this the plaintiff had no upset or collision insurance.
Accordingly plaintiff could recover from the company for loss due to upset only if this loss was caused by theft of the car.
In the complaint, paragraph IX, it is alleged that the automobile described in the insurance contract "was stolen and while so stolen was involved in a collision and wrecked."
FINDING OF TRIAL COURT
On this subject the trial court found as follows:
"9. That on the 21st day of September, 1952, the said Roy Hayes, minor son of the plaintiff, took and operated the said automobile of the plaintiff without the permission and/or consent of the plaintiff, either expressed or implied.
"10. That at the time and place of taking the said automobile the said Roy Hayes had no intention of permanently depriving his mother, the plaintiff herein, of the possession of or title to said automobile but did intend temporarily to deprive her of the possession thereof, and that while so driving and operating said motor vehicle without the consent, permission, authorization and/or approval of the plaintiff, either expressed or implied, the said automobile was wrecked as aforesaid."
As its conclusion of law the trial court found that "The taking of said automobile by the said minor ... constituted a theft within the meaning of the policy of insurance ..."
The trial court then awarded plaintiff the sum of $1,545.
[1] Ordinarily the question as to whether or not a vehicle was used with the permission of the owner is one of fact, to be determined by the trial court. (Mize v. Jorden, 116 Cal. App.2d 301 [253 P.2d 702]; Casey v. Fortune, 78 Cal. App.2d 922 [179 P.2d 99].)
*885 [2] The trial court is the sole judge of the credibility of the witnesses, and if there is any substantial support for a finding such finding will not be disturbed on appeal. (Flemmer v. Monckton, 73 Cal. App.2d 271 [166 P.2d 380].)
Appellant here makes no attack on the findings of fact with respect to the unauthorized use of the plaintiff's automobile by her minor son. However, appellant does attack the trial court's conclusion that the son's unauthorized use of his mother's automobile constituted a theft thereof.
DEFINITION OF THEFT
"Every person who shall feloniously steal, take, carry, lead or drive away the personal property of another ... is guilty of theft ..." Penal Code, section 484.
"Grand theft is theft committed in any of the following cases:
"1.
"2.
"3. When the property taken is an automobile ..." Penal Code, section 487.
WEBSTER'S DICTIONARY
"THEFT, 1. Act of stealing; the felonious taking and removing of personal property, with intent to deprive the rightful owner of it;
"2. Larceny.
"LARCENY, 1. The unlawful taking and carrying away ... of personal property with intent to deprive the rightful owner of it;
"2. Theft
"STEAL, 1. To take ... feloniously; to take without right and with intent to keep wrongfully;
"2. To appropriate to one's self furtively."
"The present statute of this state in its definition of theft, includes ... the several crimes of larceny and embezzlement." Granger v. New Jersey Ins. Co. 108 Cal. App. 290, 291, 293 [291 P. 698].
JOY-RIDING. "Any person who drives or takes a vehicle not his own, without the consent of the owner thereof, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same ... is guilty of a felony ..." Vehicle Code, section 503.
This section makes felonious the taking of an automobile with intent to steal it.
*886 To steal an automobile is to commit theft.
This section also makes felonious the taking of an automobile without the intent to steal, i.e., without the intent to commit theft.
FINDING No. 10
The trial court found that plaintiff's son "had no intention of permanently depriving his mother of the possession of or title to said automobile ..."
Does not this mean that the trial court found that the boy drove the automobile without the intent to steal or to commit theft?
If the boy drove the car without the intent to commit theft can we legally conclude that he did commit theft?
If he merely borrowed it, without permission, intending to return it reasonably soon, can it be said that he stole it?
REVIEW OF DECISIONS
[3] A review of the reported decisions discloses that the great majority of the courts hold that to warrant a recovery by an insured owner under coverage such as we have here, there must be proof of an intent to steal on the part of the user.
The excerpts in the following pages will disclose the opinions of the several jurisdictions which have been called upon to consider the question.
NEW YORK
A garage owner, without permission, used a car of another for his own purposes and while so engaged was involved in a collision. The owner sued his insurer under the "theft clause" in his policy.
In deciding that the mere use of an automobile without the consent of the owner did not constitute "theft" the New York Court of Appeals said:
"By Penal Law: `Any person ... who without the consent of the owner shall take ... an automobile ... and ... drives ... the same ... for his own ... use ... steals the same and is guilty of larceny ...' (Sec. 1293a Consol. Laws)."
"Apart from this statute, the misuse of plaintiff's car ... would not constitute a larceny, since there was lacking the felonious intent to appropriate another's property permanently and wholly. Parr v. Loder, 97 App.Div. 218, 220, 89 N.Y.S. 823; Ledvinka v. Home Ins. Co. of New York, 139 Md. 434, 115 A. 596, 19 A.L.R. 167; Michigan Commercial *887 Ins. Co. of Lansing, Mich. v. Wills, 57 Ind. App. 256, 106 N.E. 725; Phoenix Assur. Co., Limited, of London, v. Eppstein, 73 Fla. 991, 75 So. 537, L.R.A. 1917F, 540; Valley Mercantile Co. v. St. Paul Fire & Marine Ins. Co., 49 Mont. 430, 143 P. 559, L.R.A. 1915B, 327, Ann.Cas. 1916A, 1126; State v. South, 28 N.J.Law, 28, 75 Am.Dec. 250; Regina v. Trebilcock, 7 Cox Cr.Cas. 408; Pollock & Wright on Possession, p. 225.
"The courts below have held that ... what is now larceny under statute is also theft under the policy.
"We hold another view.
"The problem before us is not one of statutory construction. It is one of the meaning of the contract."
"`Unauthorized Use of Motor Vehicle' (the heading of the statute), prefigures an offense that is something less than theft as theft has commonly been known."
"Theft under this contract is theft as common thought and common speech would now image and describe it."
"One other consideration emphasizes the need for uniformity of meaning. The policy does not limit its protection to casualties suffered while the car is in New York. Theft ... in any other state are equally within its terms. This, without more, is sufficient to forbid a reading that would cause the risks to vary with the accidents of local laws. Neither insured or insurer can have believed that the same act would be theft if committed in New York, and a mere trespass or conversion if committed in Massachusetts or New Jersey. They spoke in terms so common ... as to have a meaning everywhere.
"The judgment of the ... Trial Term should be reversed, and the complaint dismissed." Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303 [146 N.E. 432, 433].
"It is equally the settled law of this State that a policy of insurance covering `theft, robbery or pilferage' does not include within those terms a violation of section 1293-a" (unauthorized use). Block v. Standard Ins. Co. of New York, 292 N.Y. 270 [54 N.E.2d 821, 822, 152 A.L.R. 1097].
ALABAMA
"Clearly, under the great weight of authority, a temporary taking of the car ... with intent to return it, not an intent to permanently deprive the owner of his property is not `theft' within the policy." (Loss from theft, robbery or pilferage.) (Recovery denied.) Home Ins. Co. of New York v. Trammell, 230 Ala. 278 [160 So. 897].
*888 "This is a suit to recover on a policy of insurance wherein the defendant insured the plaintiff's automobile against loss or damage by theft, larceny, robbery, pilferage or robbery.
"... Terry (the owner) took the insured automobile to Willie Jenkin's garage for repair ... an employee ... took ... the car ... (for his own use, and while using it) Mr. East ran into the back of the automobile and damaged it.
"The collision was investigated by a highway patrolman.... No arrests were made."
"It is our considered conclusion that the evidence ... in its most favorable light for the appellee (owner) only establishes an unauthorized use ... (and) does not afford any basis for a legitimate inference that there was any intent ... to steal the car ... Reversed." Bankers Fire & Marine Ins. Co. v. Terry, 35 Ala.App. 233 [45 So.2d 324, 325, 327].
KANSAS
"`A felonious intent means to deprive the owner, not temporarily, but permanently, of his own property, without color of right or excuse for the act, and to convert it to the taker's use without the consent of the owner.'" In re Mutchler, 55 Kan. 164 [40 P. 283, 284].
KENTUCKY
"... the term `theft' in a contract of insurance has no different meaning to `theft' as usually defined. To constitute theft, it is necessary that there be a taking of the property ... without the consent of the owner, coupled with an intention on the part of the taker to convert it to his own use and to deprive the owner of his property rights therein." McKenzie v. Travelers' Fire Ins. Co., 239 Ky. 227 [39 S.W.2d 239, 240].
MAINE
The Supreme Court of Maine similarly said: "This is a case where the definite word `theft', with meaning well understood for generations under our law, is opposed by the idea that its meaning should be here broadened to `unauthorized use'.
"The referee having found no intent to steal, we are of the opinion that he was in error in holding that `unauthorized use' was equivalent to `theft.' Wheeler v. Phoenix Indem. Co., 144 Me. 105 [65 A.2d 10, 13].
MINNESOTA
"There is no testimony to warrant the conclusion that Murphy intended to appropriate the machine to his own use, *889 or to deprive the owner of his property therein; but, on the contrary, it appears that ... the most that was done, aside from its injury, was to use it in the course of a drunken escapade." Travelers' Indem. Co. v. Fawkes, 120 Minn. 353 [139 N.W. 703, 705, 45 L.R.A.N.S. 331].
MISSOURI
"It is the established law of this state that where an insurance policy is open to different constructions, it is the duty of the court to give it that construction which is most favorable to the insured."
"However, we do not regard the word `theft' as used in the policy herein as an ambiguous word. It is a word generally and commonly used and understood to convey the same meaning as the word `steal.' To `steal' is to commit a `theft' in the usual and ordinary acceptation of the words.
"In order to have a `theft' something must be stolen by a thief. The technical legal name for the act of `stealing' or the commission of `theft' is `larceny', but there is no `stealing' or `theft' or `larceny' unless the person committing the act shows an intention permanently to deprive the owner of the property ..."
"A consideration of the reasoning in many cases holding that there can be no `theft' within the meaning of such a policy as we have before us without evidence showing an intent to deprive the owner permanently of his property, AS WELL AS THE FEW CASES TO THE CONTRARY, leads us to the conclusion that the element of such felonious intent by Norton is absent ... and we cannot properly hold there was a `theft' ... A holding that there was a theft in this case would be equivalent to branding Norton as a thief. We would not be justified in so holding in the absence of evidence from which it could reasonably be inferred that he entertained a criminal intent to deprive his employer of its truck permanently." Eiswirth Const. & Equipment Co. v. Glenn Falls Ins. Co., ___ Mo. App. ___ [240 S.W.2d 973].
In the Eiswirth case, above, the insuring agreement was as follows: "Coverage D Theft (Broad Form): Loss or damage caused by theft, larceny, robbery or pilferage."
MISSOURI
"The insurance contract only covered a felonious asportation, and it is manifest that the taking shown was, at most, a trespass against which there was no insurance." Bigus v. Pacific Coast Casualty Co., 145 Mo. App. 170 [129 S.W. 982].
*890 MONTANA
"The fact that the taking (of an automobile) was altogether wrongful, and that it was the intention of LeVasseur and Ellis to appropriate the car to their own use during the ride, and to that extent to deprive the owners of the use of their property, are not sufficient to constitute their acts larceny.
"They must have had a criminal intent the intention to steal the car, without which the act of taking, however reprehensible and wrongful, amounted to a trespass or a civil wrong."
"Many other cases holding to this same view are collected in the notes in 25 Cyc. 45."
"Considered in the light of these rules, the facts stated do not warrant the inference that the car in question was taken by LeVasseur and Ellis with criminal intent to deprive the owners of it permanently, and therefore the car was not stolen, and this case does not come within the provision of the insurance policy ..." Valley Mercantile Co. v. St. Paul Fire & Marine Ins. Co., 49 Mont. 430 [143 P. 559, 560, 561, Ann.Cas. 1916A 1126, L.R.A. 1915B 327].
OKLAHOMA
"The evidence is in substance without conflict. The plaintiff owned a delivery truck ... The defendant ... insured plaintiff against larceny, theft and pilferage; ... a young employee ... took the truck ... went on a joyride ... The truck was driven off the road and overturned ... the truck was delivered by the highway patrol.
"... he took the truck without permission of the plaintiff and against the specific instructions of plaintiff."
"In an action to recover for loss alleged to have been sustained under the theft provision of an automobile insurance policy, the burden is upon the plaintiff to establish by a preponderance of the evidence a taking and an asportation of the vehicle with the intent to deprive the true owner thereof.
"If no such intent existed but on the other hand there existed an intent on the part of the taker to return the property after a temporary use there can be no recovery." Hanover Fire Ins. Co. v. Western Bank & Office Supply Co., 198 Okla. 377 [178 P.2d 883].
TEXAS
"... appellant ... broke in, and took ... automobile ... ran the automobile some 50 or 60 miles ... took the *891 machine, on the same night, back near the owner's house and left it in an alley ..."
"... the taking did not in law constitute theft ..." Smith v. State, 66 Tex.Crim. 246 [146 S.W. 547].
"... in the absence of any felonious intent to steal, we are of the opinion that the loss complained of was not caused by theft, larceny, robbery or pilferage within the meaning of the policy sued upon." Royal Ins. Co. v. Wm. Cameron & Co., (Tex.Civ.App.) 184 S.W.2d 936, 937.
VERMONT
The Supreme Court of Vermont, in a similar situation held as follows "The rule in the great majority of states may be stated in this manner. To warrant a recovery on a policy insuring an automobile against theft there must be more than a wrongful taking; the taking must be with the intent to steal.
"The intent to steal is a necessary ingredient of the offense and may be inferred from the facts and circumstances of the case." Rainville v. Farm Bureau Mut. Auto. Ins. Co., 117 Vt. 37 [83 A.2d 599].
CALIFORNIA
Our District Court of Appeal, in 1930, said: "... it has been generally held that the words `theft', `robbery' and `pilferage' are words that are well understood and that they are used in insurance policies in their common and ordinary meaning. (Royal Ins. Co. v. Jack, 113 Ohio St. 153 [148 N.E. 923, 46 A.L.R. 529].)
"Theft involves the idea of a knowingly unlawful acquisition of property; that is, a felonious taking of it from one who has both the actual possession and the apparent right of possession. (Stewart v. Home Fire & Marine Ins. Co., 2 N.J. Misc.Rep. 515 [124 A. 773].)"
"The words ... must be deemed to have been used in their general and popular sense rather than with specific reference to the precise definition of a criminal statute. (Hill-Howard Motor Co. v. North River Ins. Co., 111 Kan. 225 [207 P. 205, 24 A.L.R. 736].)"
"The present statute of this state in its definition of theft, includes ... the several crimes of larceny and embezzlement." Granger v. New Jersey Ins. Co., 108 Cal. App. 290, 291 [291 P. 698].
"... the test of law to be applied to these circumstances for the purpose of determining the ultimate fact as to the man's guilt or innocence is, Did he intend to permanently *892 deprive the owner of his property? If he did not intend so to do, there is no felonious intent, and his acts constitute but a trespass." People v. Brown, 105 Cal. 66, 69 [38 P. 518].
MINORITY VIEW
District of Columbia
(Municipal Court of Appeals)
"... a youth (sic) of the age of three and one-half years entered the car so parked and caused it to start down the hill ..."
"a child under seven years of age is held incapable of forming a criminal intent."
"Here ... there is nothing from which we may infer a specific intent to deprive the owner of the automobile."
"To one who is a scholar and familiar with the history of the barbaric tribe whose depredations perpetuated its name in our dictionaries, to one `skilled in the niceties of language', the point (no evidence of intentional injury) may have weight." Unkelsbee v. Homestead Fire Ins. Co., (D.C.Mun. App.) 41 A.2d 168, 170.
Two of the judges of this court held that the owner should recover from the insurance company because the child's "acts were the proximate cause" of the injury.
The only discussion of the subject of theft is found in the dissenting opinion in which the following appears: "I am unable to agree with the majority."
"The word `theft' when used in a policy of this type is not to be confined in its meaning to the common-law definition of larceny, but ... it is not to be given a meaning contrary to the understanding of the word in common speech and thought.
"No one, in my opinion, would say or think that the action of the child ... was even akin to the common conception of theft."
"I see no reasonable basis for holding that the collision was caused by theft within any meaning of the word, and I understand the MAJORITY TO AGREE WITH ME IN THIS VIEW." Idem.
"The reasoning of this New York case, and of others so holding, (against theft) is based upon the theory that in common thought and common speech theft means a taking and carrying away of the property of another with intent permanently to deprive the owner of his property and nothing more. This is at best a legalistic misconception. The common thought *893 and common speech meaning of theft is that which prevails, not among lawyers and judges, but among people (who) ... have never heard of this old common-law definition."
"It is true ... that the numerical weight of authority is opposed to the position which we take." Pennsylvania Indem. Fire Corp. v. Aldridge, 73 App.D.C. 161 [117 F.2d 774, 133 A.L.R. 914].
Colorado
"It should be observed that the title of the law of 1919 is an act relating to and concerning `the theft of automobiles.'"
"We do not regard the law of 1919 (taking an automobile for temporary use) as making an essential change in the offense."
"The word `theft' has a very general meaning, and we are of the opinion that ... the act in question should be held to have been a theft for the purpose of this suit." James v. Phoenix Assur. Co., 75 Colo. 209 [225 P. 213].
Kansas
"When we reflect that ... the meaning of ... recovering stolen automobiles are so efficient, the likelihood of the owner of it permanently deprived of it through trespass, theft, larceny or otherwise is so remote that it would scarcely be worth an owner's while to insure his car against `theft' if the policy would only cover a case where he is permanently deprived of it ... in the common practice of automobile thieves there is no intention of depriving the owner of it permanently ... (but to) abandon it before the peril of his incriminating possession of it leads to his undoing." Baker v. Continental Ins. Co. 155 Kan. 26 [122 P.2d 710, 712].
New York
(County Court)
This is an opinion of the trial court in Erie County, New York, in which the trial court took cognizance of the rule established by the New York Supreme Court but, because the jury found that the taking of the automobile was a theft, this trial court said:
"Seven years have elapsed since that pronouncement." (Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303; 146 N.E. 432.)"
"Jurymen are ... in a better position than a court to divine common thought and define common speech ..."
*894 "The decision of the court (trial) in this case is grounded in the belief that the future possibility indicated in the Van Vechten Case has fructified into a prognosticated frumentary." DeLong v. Massachusetts Fire & Marine Ins. Co., 142 Misc. 654 [256 N.Y.S. 300, 301.]
Manifestly the great weight of authority is in support of the holding that a mere temporary use, although unauthorized, where there is no intent permanently to deprive the owner of his property, does not constitute theft.
Since plaintiff may recover only if her automobile were damaged as a result of theft we need not consider any of the other points discussed in the briefs.
The judgment is reversed.
Hilliard, J., and Coughlin, P.J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1439601/ | 878 F.Supp. 77 (1995)
SUNBURST BANK, Plaintiff,
v.
SUMMIT ACCEPTANCE CORPORATION, Defendant.
Civ. A. No. 3:94-cv-374WS.
United States District Court, S.D. Mississippi, Jackson Division.
March 9, 1995.
Marc E. Brand, Jackson, MS, for plaintiff.
*78 Thomas L. Kirkland, Jr., William Thomas Wilkins, IV, Jackson, MS, for defendant.
MEMORANDUM OPINION AND ORDER
WINGATE, District Judge.
Before the court is the motion of plaintiff Sunburst Bank pursuant to 28 U.S.C. § 1447[1] asking this court to remand this lawsuit to the Mississippi state court where it originated. Defendant Summit Acceptance Corporation removed this lawsuit from state court to this federal forum pursuant to 28 U.S.C. §§ 1441(a)[2] and 1332,[3] alleging diversity of citizenship and the requisite amount in controversy. The parties here are of diverse citizenship, a point contested by neither party. What is in dispute, however, is whether the amount in controversy requirement has been satisfied. More specifically, the cardinal question is whether this court should construe the $50,000-plus jurisdictional prerequisite satisfied under the "other paper" provision of 28 U.S.C. § 1446(b) where plaintiff's complaint seeks to recover only $13,102.30, but where in a demand letter to defendant plaintiff stated that the total amount of claims currently pending is approximately $52,000.00. Persuaded that the circumstances here do not meet the prerequisites of § 1446(b), this court grants plaintiff's motion to remand.
FACTS
This action was commenced by the plaintiff, Sunburst Bank ("Sunburst"), on January 4, 1994, with the filing of its complaint in the County Court for the First Judicial District of Hinds County, Mississippi. In its complaint, plaintiff seeks to recover $13,102.30 plus attorney fees and court costs from Summit Acceptance Corporation ("Summit") for an alleged breach of contract. The plaintiff attached to the complaint a copy of the contract that it alleges was entered into between itself and Summit.
Plaintiff is a banking institution organized and existing under the laws of the State of Mississippi. Summit was incorporated and has its principal place of business in Texas. So, since the parties are of diverse citizenship, if the requisite jurisdictional amount is present, this court would have proper jurisdiction over this dispute under 28 U.S.C. § 1332.
According to Sunburst, on or about April 3, 1989, Sunburst's office in Jackson, Mississippi, entered into a Contract ("Contract") with Summit wherein Sunburst agreed to purchase certain Consumer Auto Security Agreements ("Security Agreements") via assignment. Under this Contract, Sunburst purchased three Security Agreements. These Security Agreements, secured by automobiles, were with Jackie R. O'Neal, Juan F. Ortega, and Claude Gragg, Jr. All three Security Agreements went into a default status. After repossession of the vehicles acting as security for the loans, Sunburst says it realized a loss of $9,007.02, $2,339.93, and $1,775.35 respectively, not including attorney fees and court costs subsequently incurred.
*79 According to Sunburst, in the Contract Summit agreed to purchase an insurance policy to protect Sunburst in the event of a default under these Security Agreements. Sunburst says Summit obtained the policy but coverage under the policy was rendered ineffective due to the insolvency of one of the underwriting insurers. As a result of this development, says Sunburst, pursuant to the express terms of the Contract, Summit is obligated to repurchase the Security Agreements from Sunburst because the entire consumer loan was not insured by the policy in the event of default.
After service was had on the defendant and local counsel was retained to defend this case, the parties undertook to negotiate a settlement of this case. During this time, Sunburst says it discovered that its Louisiana operations had entered into a totally separate contract ("Louisiana Contract") with the defendant on a different date, with different terms, different conditions, and different obligations in the event of a default. According to Sunburst, this Louisiana Contract had resulted in losses of approximately $39,000.00. During the time these facts came to Sunburst's attention, Sunburst says the defendant tendered and offered to settle any and all claims, past and future, from any and all sources whatsoever, for the sum of $10,000.00. Sunburst says that its response to the defendant's offer contemplated defendant's total exposure from both the Mississippi Contract ($13,000) and Louisiana Contract ($39,000) to be approximately $52,000.00. By letter dated June 10, 1994, plaintiff notified Summit that "the total amount of claims currently pending is approximately $52,000.00." After receiving this letter, Summit removed this cause to this federal court on June 23, 1994, alleging that the § 1332 prongs of diversity of citizenship and jurisdictional amount in controversy had both been satisfied.
ANALYSIS
Pursuant to 28 U.S.C. § 1332, federal district courts "have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000.00 exclusive of interest and costs, and is between (1) citizens of different states...." There is no dispute that both the citizenship and "amount in controversy" requirements must be met in order to invoke the court's jurisdiction in this matter. Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir.1992); J.A. Olson Co. v. City of Winona, 818 F.2d 401 (5th Cir.1987).
In the case presently before the court, the parties, Sunburst and Summit, are citizens of different states and have their principal places of business in different states. Both Sunburst and Summit are corporations. "A corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business...." 28 U.S.C. § 1332. Sunburst is a banking institution incorporated in and with its principal place of business in Mississippi. Summit is incorporated in and has its principal place of business in Texas. Thus, the parties are of diverse citizenship. This has not been disputed by the plaintiff.
What is in dispute here is the amount in controversy and whether the defendant properly removed this case from state court to this federal court under 28 U.S.C. § 1446(b), that is, whether plaintiff's demand letter to defendant of June 10, 1994, wherein plaintiff sought $52,000.00 in settlement constitutes under § 1446(b) a "paper from which it may first be ascertained that the case is one which is or has become removable...."
Section 1446(b) states as follows:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it *80 may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
The burden here of establishing that federal jurisdiction exists, i.e., that the plaintiff's demand letter satisfies § 1446(b) relative to the jurisdictional amount is on the removing party, the defendant. Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 253-54 (5th Cir.1961); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981); Asociacion Nacional de Pescadores v. Dow Quimica de Columbia, 988 F.2d 559, 563 (5th Cir. 1993); Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992).
Many courts that have considered the "other paper" provision of § 1446(b) apply its prescriptions only to papers "filed in the case." See Phillips v. Allstate Ins. Co., 702 F.Supp. 1466, 1468-69 (C.D.Ca.1989) (holding that "paper" does not include intervening statutory or case law changes); Hollenbeck v. Burroughs Corp., 664 F.Supp. 280 (E.D.Mich.1987) (holding that Supreme Court's decision in a different case did not constitute "other paper" and the instant case could not be removed on the basis of that decision); Johansen v. Employee Benefit Claims, Inc., 668 F.Supp. 1294, 1296-97 (D.Minn.1987) (stating that the phrase "or other paper" refers solely to documents generated within the state court litigation itself); Avco Corporation v. Local 1010 of the International Union (UAW AFL-CIO), 287 F.Supp. 132 (D.Conn.1968) (Supreme Court holding making LMRA preempted cases removable was not "other paper"); Johnson v. Trans World Airlines, Inc., 660 F.Supp. 914 (C.D.Cal.1987) (Supreme Court decision allowing removal of ERISA preempted cases was not "other paper"). See Kocaj v. Chrysler Corp., 794 F.Supp. 234, 237 (E.D.Mich. 1992) (stating that "the term `other paper' means a paper in the state court action that does not constitute `an amended pleading, motion or order' ... such `other paper' could, for example, be a plaintiff's response to a summary judgment motion, answers to interrogatories, or statements of a plaintiff."); Fisher v. United Airlines, Inc., 218 F.Supp. 223 (S.D.N.Y.1963) (answer given on the deposition was a "paper" within the meaning of § 1446(b) from which removability could first be ascertained); Gilardi v. Atchison, T. & S.F.R. Co., 189 F.Supp. 82 (N.D.Ill.1960) (defendant's discovery proceedings of plaintiff was a sufficient "other paper" within the meaning of § 1446(b)); Fuqua v. Gulf, C. & S.F.R. Co., 206 F.Supp. 814 (E.D.Okla.1962) (the discovery deposition taken by the plaintiff pursuant to state law was such "other paper" within the meaning of § 1446(b)); Camden Industries Co. v. Carpenters Local Union No. 1688, 246 F.Supp. 252 (D.N.H.), aff'd, 353 F.2d 178 (1st Cir.1965) (plaintiff's informal answers to interrogatories revealing that it was engaged in interstate commerce constituted "other paper" within the meaning of § 1446(b)); Evangelical Lutheran Church v. Stanolind Oil & Gas Co., 251 F.2d 412 (8th Cir.1958) (plaintiff's reply to the defendant's answer or defense has been held a "pleading or other paper"). Compare Campos v. Housland, Inc., 824 F.Supp. 100, 102 (S.D.Tex.1993) (deposition does not constitute an "other paper" as that term is used in 28 U.S.C. § 1446(b)).
Other courts have applied § 1446(b) to "papers" generally. See Hessler v. Armstrong World Industries, Inc., 684 F.Supp. 393, 394-95 (D.Del.1988) (utterances from counsel and statements made in court constituted "other paper"); Hamilton v. Hayes Freight Lines, Inc., 102 F.Supp. 594 (E.D.Ky.1952) (holding that an answer in a collateral proceeding qualified as "other paper" for purposes of applying the time limit of § 1446(b)); Central Iowa Agri-Systems v. Old Heritage Advertising and Publishers, Inc., 727 F.Supp. 1304, 1305 (S.D.Iowa 1989) (holding that plaintiff's pre-suit demand letter was an "other paper").
Further, some courts construe § 1446(b)'s language requiring "receipt of a ... paper" literally. See Harrell v. Reynolds Metals Co., 599 F.Supp. 966, 968 (N.D.Ala.1985) (stating "[t]he fact is that removability is triggered by 28 U.S.C. § 1446 only by service of the summons and complaint or by `receipt by the defendant ... of a copy of an amended pleading, motion, order, or other paper from which it may be first ascertained' *81 that the case is removable. A deposition taken by the defendant does not constitute any of these events."). Other courts read this requirement more expansively. See Heniford v. American Motors Sales Corp., 471 F.Supp. 328, 334 (D.S.C.1979) (the admonition to a jury in state court by plaintiffs' attorney not to return a verdict against the resident defendant established the prerequisites for removal diversity jurisdiction under 28 U.S.C. § 1446(b). Plaintiffs' refusal to put in writing their dismissal of resident defendant did not defeat defendant's right to remove); Brooks v. Solomon Co., 542 F.Supp. 1229, 1230 (N.D.Ala.1982) (plaintiff's discovery deposition taken under state law constituted an "other paper" for the purposes of 28 U.S.C. § 1446(b) and time for removal began to run after plaintiff's deposition); Kanter & Eisenberg v. Madison Assoc., 602 F.Supp. 798, 801 (N.D.Ill.1985) (rejecting defendants' argument that the deposition of plaintiff was the first time that the defendants could have learned plaintiff's citizenship. Time for removal began to run after defendants received copy of complaint).
Relative to the "receipt of a paper" controversy of § 1446(b), this court need not address it further since even by the most literal interpretation there is receipt of a paper here. All parties agree that defendant did receive plaintiff's written demand letter of June 10, 1994. This court, however, must resolve two other questions: first, whether § 1446(b) requires this demand letter to be a paper "filed in the case." If so, then our analysis is at an end since the demand letter in question was not filed in the case. It was merely a correspondence between the parties. Should this court determine that § 1446(b) includes correspondence as "other papers," then the court's next task is to determine whether the thrust of the demand letter properly triggers removal.
On at least two occasions, the Fifth Circuit Court of Appeals resolved remand issues without deciding what constitutes "other papers." See FDIC v. Loyd, 955 F.2d 316, 326 (5th Cir.1992) (declining to reach the question of whether "other paper" under § 1446(b) includes or excludes the appointment papers of a receiver); Chapman v. Powermatic, Inc., 969 F.2d 160, 164 n. 8 (5th Cir.1992) (refusing to express an opinion as to whether medical bills and demand letter would be adequate as "other paper" for purposes of the second paragraph of § 1446(b)). This gap in Fifth Circuit jurisprudence thus invites this court to write on the issue.
This court is inclined to follow that line of case authority which holds that § 1446(b) is not restricted solely to papers filed in the case. The statute does not define "other paper." Also absent is any relevant legislative history as to what constitutes "other paper." Hence, this court relies principally upon the language of § 1446(b) to discern the meaning of "other paper." In Broderick v. Dellasandro, 859 F.Supp. 176, 178 (E.D.Pa.1994), the district court analyzed the statutory language and concluded the following:
The statute, however, is clear that the time for removal begins to run when the defendant receives the requisite written notice of facts which make the case removable. The statutory requirement of a writing reduces disputes over knowledge of diversity or the amount in controversy and helps avoid later battles of credibility between opposing parties and lawyers. See Smith v. Bally's Holiday, 843 F.Supp. 1451 (N.D.Ga.1994). Although notice must be in writing, the statute does not require "service" of that notice in some formal legal sense. Notification may be "through service or otherwise." 28 U.S.C. § 1446(b) (emphasis added). Thus, while Congress insisted that notice of facts permitting removal must be in an "amended pleading, motion, order or other paper," the method of delivery or receipt of the writing was not circumscribed. See 28 U.S.C. § 1446(b). In sum, the purpose of the statute "is to commence the running of the thirty-day period once the defendant receives actual notice that the case has become removable, which may be communicated in a formal or informal manner." 14A Wright, Miller & Cooper, Federal Practice & Procedure, § 3732 at 520 (emphasis added). See also 28 U.S.C. § 1446, Commentary on 1988 Revision of § 1446. *82 Broderick v. Dellasandro, 859 F.Supp. at 178. This court interprets § 1446(b)'s purpose and thrust similarly. The essential purpose of § 1446(b) is to commence the running of the 30-day period once the defendant receives the requisite written notice that the case has become removable. This actual notice may be communicated in a formal or informal manner. Accordingly, this court holds that a demand letter under proper circumstances may be accorded "other paper" status under § 1446(b).
Next, the court must determine whether the contents of the demand letter in the case sub judice make this case removable. This court is not persuaded that the demand letter here shows that the amount in controversy in this case exceeds $50,000.00. Several factors support this court's conclusion. First, the matter was brought in the County Court of the First Judicial District of Hinds County, Mississippi. Pursuant to Miss.Code Ann. § 9-9-21,[4] this court has a maximum jurisdictional amount of $50,000.00. Plaintiff's choice of this state court forum with its statutory limitation is certainly evidence of the maximum amount sought by plaintiff.
Next, in its complaint plaintiff asked only for $13,102.30, a specific sum substantially less than $50,000.00. While this court certainly recognizes that this court is not required to accept blindly plaintiff's assertions, Theis v. El Fenix Corp., 748 F.Supp. 810 (W.D.Okla.1990), still, under these circumstances, this court credits this in plaintiff's favor.
Finally, this court notes that the Louisiana Contract has not been made a part of this lawsuit. The Louisiana Contract has not been pleaded. Plaintiff has submitted no motion to amend her complaint to bring the Louisiana Contract into this case's dispute. What is before the court is only the Mississippi Contract, a copy of which was attached to plaintiff's complaint. The maximum amounts plaintiff may recover under the Mississippi Contract are computable and will not exceed $50,000.00. Further, were this court to render at this time a judgment on the pleadings, the plaintiff would be restricted to the maximum amounts evidenced by the Mississippi Contract to be in issue.
In conclusion, the defendant has not met its burden of showing that federal jurisdiction exists. Defendant has failed to show under § 1446(b) that plaintiff is seeking damages in excess of the federal jurisdictional threshold. Accordingly, this court hereby remands this case to the County Court of the First Judicial District of Hinds County, Mississippi.
SO ORDERED AND ADJUDGED.
NOTES
[1] Title 28 U.S.C. § 1447 provides in pertinent part:
(c) A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
[2] Section 1441(a) states:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.
[3] Title 28 U.S.C. § 1332 provides in pertinent part:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between
(1) citizens of different States; ...
[4] Mississippi Code Annotated § 9-9-21 provides in pertinent part as follows:
(1) The jurisdiction of the county court shall be as follows: It shall have jurisdiction concurrent with the justice court in all matters, civil and criminal of which the justice court has jurisdiction; and it shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of Fifty Thousand Dollars ($50,000.00), ... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374092/ | 479 S.E.2d 194 (1996)
223 Ga. App. 894
McNABB et al.
v.
LANDIS et al.
No. A96A1839.
Court of Appeals of Georgia.
December 10, 1996.
Greer, Klosik & Daugherty, Frank J. Klosik, Jr., John F. Daugherty, Deborah M. Carter, Atlanta, for appellants.
Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Patricia M. Peters, Atlanta, for appellees.
*195 HAROLD R. BANKE, Senior Appellate Judge.
Don McNabb, individually, and as executor of the estate of his wife, Patty McNabb ("McNabb"), sued Anthony Landis, D.O., and Suburban Hematology-Oncology Associates, P.C. ("Landis") asserting a medical malpractice claim for the wrongful death of his wife. Following a defense verdict, McNabb enumerates six errors.
In August 1991, Patty McNabb was diagnosed with breast cancer. Surgery revealed that the cancer had spread to several axillary lymph nodes. Her surgeon, Wallace Martin, M.D., recommended chemotherapy with Landis. During her initial consultation, Patty McNabb informed Landis that she had a family history of heart problems. Her medical records indicate that when Landis examined her, she was approximately five feet, four inches tall and weighed about 200 pounds. Based on his physical examination, Landis concluded that Patty McNabb did not exhibit signs of underlying heart disease. Landis treated Patty McNabb with several drugs including adriamycin, a highly potent drug known to cause serious heart damage in some patients. Having decided that Patty McNabb lacked any cardiac risk factor contraindicating adriamycin's use, Landis continued to treat her with it over several months. In February 1992, Patty McNabb was diagnosed with irreversible adriamycin-induced cardiomyopathy. Shortly after her rejection as a candidate for a heart transplant, she died in April 1992.
McNabb's expert, Gary B. Witman, M.D., testified that the failure to obtain a baseline EKG before administering adriamycin deviated from the applicable standard of care. Witman testified that excellent alternative chemotherapy drugs were then available including another drug with less cardiotoxicity. It is undisputed that Landis did not obtain a baseline EKG and that Patty McNabb's records included two abnormal EKGs, one obtained before Landis prescribed adriamycin and one performed during the time of her treatment. Landis testified that he never reviewed either abnormal EKG and was unaware of their existence until after her death. The gravamen of McNabb's malpractice claim was that Landis failed to obtain a baseline EKG and breached the standard of care by authorizing adriamycin without further testing. McNabb further contended that Landis' failure to review the existing and available abnormal EKGs from August and October 1991 constituted negligence. Held:
1. The trial court erred in its charge on hindsight. The trial court omitted crucial language from the hindsight charge approved in Haynes v. Hoffman, 164 Ga.App. 236, 238(3), 296 S.E.2d 216 (1982). Here, the trial court incompletely charged, "I charge you that in a medical malpractice action a defendant cannot be found negligent on the basis of an assessment of a patient's condition which only later in hindsight proves to be incorrect so long as the initial assessment was made in accordance with reasonable standards of medical care. In other words, the concept of negligence does not include hindsight." This charge omitted: "[N]egligence consists in not foreseeing and guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible." Haynes, 164 Ga.App. at 238(3), 296 S.E.2d 216. This omission renders the charge used an incomplete statement of law. See id.
Moreover, the evidence did not warrant a charge on hindsight. The hindsight charge is appropriate in a medical malpractice case where the evidence raises an issue as to whether the negligence claim is premised on later acquired knowledge or information not known or reasonably available to the defendant physician at the time he provided the medical care. Horton v. Eaton, 215 Ga.App. 803, 807(4), 452 S.E.2d 541 (1994); compare Haynes, 164 Ga.App. at 238(3), 296 S.E.2d 216.
Here, at issue was whether Landis' failure to obtain and interpret a baseline EKG on the decedent comported with the applicable standard of care; in other words, whether Landis' authorization of the use of adriamycin without the conducting of any preliminary testing was negligent. Hindsight, based on information that became available later, was *196 not at issue. Compare Yuscavage v. Jones, 213 Ga.App. 800, 803(5), 446 S.E.2d 209 (1994). A charge which injects issues into a case not supported by the evidence tends to confuse a jury as to the true issues. McCoy v. Alvista Care Home, 194 Ga.App. 599, 391 S.E.2d 419 (1990). Because the jury was improperly charged on hindsight, we reverse.
Having decided to reverse, we reach only those issues that may recur during the trial of this matter.
2. The trial court did not err in denying McNabb's motion to limit or disallow the testimony of Landis' six expert witnesses. The record shows that four of the six physicians at issue provided medical care to the decedent or performed the autopsy. OCGA § 9-11-26(b)(4)(A)(i) had no application to these witnesses since their knowledge and opinions arose from personal involvement with the decedent. See Candler Gen. Hosp. v. Joiner, 180 Ga.App. 455, 458(2), 349 S.E.2d 756 (1986). The other two witnesses had been identified as experts months before trial in supplementary responses to McNabb's continuing interrogatories. Landis had provided summaries for their opinions and stated the grounds for each one. See OCGA § 9-11-26(b)(4)(A)(i); Austin v. Kaufman, 203 Ga.App. 704, 709(7), 417 S.E.2d 660 (1992).
3. McNabb contends that the trial court impermissibly commented on the testimony of Gary Witman, M.D. and violated OCGA § 9-10-7. McNabb's failure to object or move for a mistrial on this issue precludes appellate review. Provost v. Gwinnett County, 199 Ga.App. 713, 714(4), 405 S.E.2d 754 (1991).
4. The trial court did not err in refusing to allow McNabb's counsel to gratuitously inject Landis' financial status into closing argument. Facts not in the record and calculated to prejudice the opposing party cannot be introduced into the case in closing argument. Williams v. Piggly Wiggly Southern, 209 Ga.App. 490, 491, 433 S.E.2d 676 (1993); OCGA § 9-10-185.
5. The trial court did not err in excluding certain portions of the testimony of McNabb's expert, Donald Jansen, M.D. It is undisputed that at the time the deposition was videotaped the parties agreed to make all objections on the record and that these portions of Jansen's testimony were not objected to. Despite that stipulation, at trial, Landis moved to exclude certain portions of Jansen's deposition testimony.
At its discretion, a trial court may exclude evidence whose probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or confuse issues or mislead the jury. Hunter v. Hardnett, 199 Ga.App. 443, 444(1), 405 S.E.2d 286 (1991). The applicable standard of care is that employed by the medical profession generally and not what one individual doctor thought was advisable or would have done under the circumstances. Kenney v. Piedmont Hosp., 136 Ga.App. 660, 664(3), 222 S.E.2d 162 (1975); see Slack v. Moorhead, 152 Ga.App. 68, 71, 262 S.E.2d 186 (1979). Here, the excluded testimony pertained to Jansen's personal views and personal opinions as to the care and treatment he himself would have rendered. See id.; Hunter, 199 Ga.App. at 444, 405 S.E.2d 286.
Judgment reversed and case remanded.
McMURRAY, P.J., and RUFFIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2985263/ | Motion Granted; Dismissed and Memorandum Opinion filed December 17,
2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00874-CV
HARDAWAY NET-WORKS, INC., Appellant
V.
THE CONCENTRIC3 GROUP, INC., Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2011-32266
MEMORANDUM OPINION
This is an appeal from a judgment signed July 1, 2013. On December 6,
2013, appellant filed a motion to dismiss the appeal because the parties have
reached an agreement to compromise and settle their differences arising from the
underlying lawsuit. See Tex. R. App. P. 42.1. The motion is granted.
Accordingly, the appeal is ordered dismissed with prejudice.
PER CURIAM
Panel consists of Justices Boyce, Christopher, and Brown. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1698128/ | 626 So. 2d 744 (1993)
In re PETITION OF Edmond G. MIRANNE, Jr.
No. 92-CA-840.
Court of Appeal of Louisiana, Fifth Circuit.
October 26, 1993.
Edmond G. Miranne, Jr., in pro. per.
*745 Frederick R. Bott, Mary E. Mouton, Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appellees.
Before BOWES, GRISBAUM and DUFRESNE, JJ.
GRISBAUM, Judge.
This appeal concerns the denial of a petition to perpetuate testimony prior to suit. Defendants moved for a dismissal and sanctions, which were granted. We affirm in part and set aside and vacate in part.
The basic record facts and procedural history will not be presented since they are not relevant to the questions of law at issue.
ISSUES
We are called upon to determine the following:
(1) Did the trial court err, as a matter of law, in dismissing plaintiff's petition for oral deposition under La.Code Civ.P. art. 1429?
(2) Was it appropriate to sanction the plaintiff because he presented a claim not cognizable in court?
ANALYSISISSUE ONE
La.Code Civ.P. art. 1429 provides:
A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in a court in which the anticipated action might be brought. The petition shall be entitled in the name of the petitioner and shall show:
(1) That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought.
(2) The subject matter of the expected action and his interest therein.
(3) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it.
(4) The names or a description of the persons he expects will be adverse parties and their addresses so far as known.
(5) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
We are guided by our jurisprudence which provides that, given the similar language of La.Code Civ.P. art. 1429 and Federal Rule 27(a)(1), it is reasonable to look to federal jurisprudence for interpretation. Our state courts agree with the federal courts that such a provision is not to be used for the purpose of fishing for some ground for bringing suit. Instead, its primary purpose is to preserve testimony that might otherwise be lost to a prospective litigant. In re Vermilion Parish School Bd., 357 So. 2d 1295, 1297 (La.App. 3d Cir.1978).
We note our Civil Code of Procedure mandates that the petitioner must show he expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought. Here, the appellant told the trial court that "I've got to find out which parts Mr. O'Bryon [the deponent] may have violated. I've got enough smoke, your Honor; I don't have enough fire to file a lawsuit." It is obvious, from petitioner's own admission, that he wants to depose for the sole purpose of discovering any possible cause of action he may have. Such "fishing expeditions" are not contemplated by our statutory scheme.
Additionally, the petitioner must show facts which he desires to establish and the reasons for perpetuation of testimony. It must appear that the taking of testimony was made necessary by the danger that it might be lost by delay. See Vermilion, supra.
The record shows the information he expects to elicit as follows:
The substance of the testimony petitioner expects to elicit from Kevin O'Bryon and James J. O'Connor is: (i) the confirmation of the facts alleged in the lawsuits; (ii) the res gestate of the circumstances surrounding those facts including related events, acts and declarations by the parties, bystanders and strangers; and (iii) the malice, intent, knowledge and other *746 conditions of mind of the persons to be examined.
We find that item (ii) does not allege any facts but merely resembles an attempt to dredge through a deposition in hopes petitioner finds something actionable. This is precisely for what our statutory scheme is not meant to be used. Importantly, there is no allegation that the taking of the deposition would be made necessary by the danger that it might be lost by delay.
In the final analysis, the requirements of La.Code Civ.P. art. 1429 have not been satisfied.
SANCTIONS
We will now turn to determine whether the imposition of sanctions was proper.
La.Code Civ.P. art. 863 provides:
A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.
The appellant asserts that the trial court abused its discretion. We agree.
The trial court's sole reasoning for imposing sanctions was that the petitioner did not present a "cognizable" claim under the law. However, to impose sanctions for frivolous pleadings, the trial court must find that one of the four affirmative duties in La.Code Civ.P. art. 863 has been violated.
Therefore, the threshold question is whether an action which is not "cognizable" violates La.Code Civ.P. art. 863. Black's Law Dictionary (5th ed. 1979) defines cognizable as "Capable of being tried or examined before a designated tribunal; within jurisdiction of court or power given to court to adjudicate controversy."
The definition equates cognizability with justiciability. See Samuel Goldwyn, Inc. v. United Artists Corp., 113 F.2d 703 (3d Cir. 1940), footnote 2 at 707. Cognizability is not encompassed in La.Code Civ.P. art. 863 duties. Instead, it is La.Code Civ.P. art. 1429 which mandates a cognizable action. Thus, the trial court had no legal basis to authorize sanctions under art. 863 for something mandated by art. 1429. The proper remedy was denial of plaintiff's petition and nothing more.
La.Code Civ.P. art. 863 is intended only for exceptional circumstances and is not to be used simply because parties disagree as to the correct resolution of a legal matter. Nothing in art. 863 empowers the district court to impose sanctions on lawyers simply because a particular argument or ground for *747 relief contained in a non-frivolous motion is found to be unjustified. See Loyola v. A Touch of Class Transp. Serv., 580 So. 2d 506, 510 (La.App. 4th Cir.1991).
Finally, we note the trial court stated the only action Mr. Miranne had against Mr. O'Bryon was a malpractice claim in tort with a one-year prescriptive period. The trial court recognized that that action had prescribed. However, simply because Mr. Miranne filed a petition regarding an action which has prescribed does not in any way warrant sanctions. La.Code Civ.P. art. 863 was not implemented to inhibit imaginative legal or factual approaches to applicable law nor to unduly harness good faith calls for reconsideration of a settled doctrine. See Loyola, supra, at 510. Art. 863 is a punitive measure created to ensure proper inquiry and investigation into facts and law. This statute was not designed as a method to chill a lawyer from certain avenues of effective representations.
For the reasons assigned, that part of the trial court's judgment dated February 12, 1992 which dismissed the plaintiff's petition for oral deposition is hereby affirmed; that part of the judgment ordering sanctions is hereby set aside and vacated. Each party to this appeal is to bear its respective costs.
AFFIRMED IN PART; SET ASIDE AND VACATED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1137485/ | 647 So. 2d 511 (1994)
STATE of Louisiana, Plaintiff-Appellee,
v.
Troy Pitre GUIDRY, Defendant-Appellant.
No. CR94-607.
Court of Appeal of Louisiana, Third Circuit.
December 7, 1994.
*513 John Phillip Haney, St. Martinville, for State.
William Robert Collins, New Iberia, for Troy P. Guidry.
Before KNOLL and WOODARD, JJ., and BERTRAND[*], J. Pro Tem.
*514 KNOLL, Judge.
Troy Pitre Guidry was charged by bill of information with attempted first-degree murder, a violation of LSA-R.S. 14:27 and 14:30(A)(2), with possession of more than 28 grams but less than 200 grams of cocaine, a violation of LSA-R.S. 40:967(F)(1)(a), and with intimidation of a witness, a violation of LSA-R.S. 14:129.1(b). The charge of intimidation of a witness was dismissed by the State prior to trial. A jury found the defendant guilty of attempted first-degree murder and possession of more than 28 grams of cocaine. Guidry was sentenced to fifteen years at hard labor on the attempted murder charge and twenty years at hard labor plus a $50,000 fine on the cocaine charge. The trial judge ordered the sentences to run consecutively. Setting forth twelve assignments of error,[1] Guidry appeals. We affirm.
FACTS
On June 11, 1992, law enforcement agencies in New Iberia, in cooperation with the St. Mary Parish Sheriff's Department, planned an undercover operation to purchase illegal narcotics from dealers in New Iberia. Based on information received by the New Iberia Police Department, the undercover operation specifically targeted Troy Pitre Guidry. Agent Arthur Welsh of the St. Mary Parish Sheriff's Department was assigned to work with a confidential informant to purchase cocaine from Guidry.
At approximately 4:00 p.m. on the afternoon of June 11, Agent Welsh and the informant, Harrison Welcome, drove to the area where police believed Guidry was located. Agent Welsh sent Welcome to tell Guidry that they were looking for crack cocaine. After a few minutes, Welcome returned and said that Guidry and his associate, David Jefferson, were checking the area "to see if some cops were around." As Guidry and Jefferson approached Agent Welsh, who was standing on the sidewalk, Guidry suggested that Agent Welsh might be a "narc." Jefferson agreed, and upon expressing concern that Agent Welsh was "wired," Guidry suggested that Agent Welsh be searched. Jefferson saw that Agent Welsh was wearing a beeper (actually a wireless transmitting device or "body mike") and attempted to grab for the device. A fight ensued. As Jefferson struggled with Agent Welsh, Guidry crushed a beer can over the officer's head, causing him to fall to the ground. Guidry then repeatedly kicked Agent Welsh in the head, while screaming to Jefferson, "Kill the bitch."
The members of the undercover team who were assigned to monitor the body mike worn by Agent Welsh arrived on the scene within minutes. Guidry and Jefferson fled on foot. Agent Welsh was found lying in a ditch, unconscious and bleeding from the nose and mouth. He was taken to a local hospital, where he underwent surgery to repair a broken jaw. Guidry and Jefferson were arrested a short time later.
Thereafter, based on information acquired from Jefferson during questioning and corroborated by other sources, officers discovered that Guidry stored large amounts of drugs at his sister's apartment in New Iberia. A search warrant was sought and obtained for the residence of Guidry's sister, Veronica Gardner. In a back bedroom of the apartment, officers located a total of 74 grams of cocaine. A fingerprint found on a medicine bottle containing two rocks of crack cocaine matched the print of Troy Guidry's right index finger.
DEFENDANT'S PRO SE MOTIONS
In his first assignment of error, the defendant claims that the trial court erred in not ruling on his pro se motions prior to sentencing. Defendant's retained attorney allegedly refused to file the motions because he had not been paid.
On November 4, 1993, while still represented by counsel, the defendant attempted to file pro se motions for a new trial and for a post verdict judgment of acquittal. The motions were returned to defendant by the Iberia Parish Clerk of Court along with the trial *515 judge's handwritten note stating, "Will not consider. Defendant is represented by counsel."
The trial court is not required to consider the merits of a defendant's pro se motions if the defendant is represented by counsel. State v. Greer, 572 So. 2d 1166 (La. App. 1st Cir.1990). A defendant has no right to be both represented and representative. State v. Bodley, 394 So. 2d 584 (La.1981), and cases cited therein. We find this assignment of error to be without merit.[2]
PROBABLE CAUSE TO OBTAIN A SEARCH WARRANT
In the defendant's second assignment of error, he argues that the trial court erred in denying his motion to suppress physical evidence seized pursuant to an allegedly invalid search warrant. Defendant contends that the affidavit in support of the warrant failed to demonstrate that probable cause existed to search Veronica Gardner's apartment.
The affidavit at issue states in relevant part:
"The probable cause is based on the following:
Affiant was informed by officers of the New Iberia Police dept that on June 6, 1992 the New Iberia police made a traffic stop of Troy Pitre Guidry and found Guidry to be in possession of a large sum of money. Once officers found the money Guidry fled the scene with the money and in the process struck the officer who initiated the traffic stop. On two other occasions Guidry has been charged with possession of cocaine with the intent to distribute[;] the status of these charges are [sic] not known at this time. On this date affiant together with other narcotics officers with the New Iberia police dept. were [sic] conducting an operation in which an undercover officer was attacked by Guidry and the agent was hospitalized as a result of the beating. One of the other parties involved in the beating of the agent (David Jefferson) admitted that he did sell cocaine for Guidry. At approximately 10:00 am on June 11, 1992 he, Jefferson observed several large cookies of cocaine in his possession (guidry) at the above mentioned address which is the address of Troy Guidry's sister Veronica Gardner. Jefferson stated that Guidry kept three of the cookies and placed the other cookies which he had back into the bedroom of the residence and then they departed. Affiant was also informed by Lt. Hills and Det. Mcdaniels that Guidry admitted to being in possession of cocaine and money on June 6, 1992 at the time he was stopped for a traffic violation. Affiant has been told by other reliable informants which affiant has used in the past that Guidry over the last several months has been selling crack cocaine in the New Iberia area. Affiant was also told by a reliable informant that Guidry was in possession of crack cocaine this date which substantiatied [sic] the information."
Although other informants stated that the defendant sold or possessed drugs, defendant contends that no one other than David Jefferson, a co-participant in the beating of Agent Welsh, placed the drugs allegedly possessed by Guidry at Veronica Gardner's apartment. Therefore, defendant concludes, probable cause to search the apartment was lacking because Jefferson was "trying to extricate himself by saying anything that he can to avoid prosecution for [the attempted murder] charge." We disagree.
We find that the affidavit plainly recites facts which would establish to the satisfaction of a neutral and detached magistrate probable cause to search Ms. Gardner's apartment. In addition to the statements of various police officers and confidential informants regarding Guidry's criminal activities and Jefferson's first hand observation of the cocaine in the apartment, the affidavit also recounted personal and recent participation by Jefferson in the possession and distribution of cocaine, proscribed by the provisions of LSA-R.S. 40:967.
"Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a *516 crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibilitysufficient at least to support a finding of probable cause to search."
United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 2082, 29 L. Ed. 2d 723 (1971).
Mindful that a magistrate's determination of probable cause is to be paid great deference by the reviewing court, State v. Landry, 557 So. 2d 331 (La.App. 3d Cir.), writ denied, 561 So. 2d 114 (La.1990), we conclude that the affidavit, considered as a whole, was sufficient to support issuance of the search warrant. This assignment of error is without merit.
"OTHER CRIMES" EVIDENCE
The defendant's third and fourth assignments of error concern the testimony of Sheila Anderson, who was called by the State to testify that she attempted to purchase cocaine from the defendant on June 11, the date of the present offenses, and testimony regarding the defendant's arrest in New Iberia on June 5, 1992, one week before the incident involving Agent Welsh. We will discuss these two assignments together since both are related.
The trial court ruled that Sheila Anderson would be allowed to testify that she tried to purchase crack cocaine from the defendant on the day that Agent Welsh was beaten. She testified that when she approached Guidry about the purchase, Guidry told her to meet him around the corner in fifteen minutes. When she arrived, Guidry said to come back later "because the lady across the street [is] watching." Ms. Anderson stated that she never went back because of the Agent Welsh incident.
The trial court also ruled that Lieutenant David Mestayer of the New Iberia City Police could testify as to events which occurred on June 5, 1992. At about 8:30 p.m., Lieutenant Mestayer observed a car driven by the defendant leave the grounds of New Iberia Senior High School. The car had an expired license plate, so Lieutenant Mestayer pulled the vehicle over to investigate. When asked for his driver's license, Guidry told the officer that it was in the trunk in a paper bag. The two went to the rear of the car, and when Guidry pulled out the paper bag, he hesitated. Lieutenant Mestayer, fearing for his safety, reached for the bag and opened it. Inside was a large amount of currency. Guidry grabbed the bag and fled on foot. He was later arrested; however, the paper bag was never retrieved. After he was in custody, Guidry told police that the bag contained several thousand dollars and a small quantity of drugs, and since he "couldn't get caught with it," he ran from Lieutenant Mestayer. At the Prieur hearing, the trial judge stated that "it's circumstantial evidence with regard to the money and the large amount of cocaine that we have as the subject matter of this charge. It's not evidence of other crimes; it's for the jury to draw whatever conclusion they want to make from that evidence."
The defendant contends that the testimony of both Sheila Anderson and Lieutenant Mestayer should have been excluded on grounds of relevancy. The State argues, however, that the testimony was relevant to the issue of the defendant's possession of cocaine on June 11. The trial judge noted that since this is a constructive possession case, the evidence was admissible to show possession as well as mode of operation pursuant to Article 404(B) of the Code of Evidence.
We find that this testimony was irrelevant and was improperly admitted. However, even had the evidence been excluded, sufficient evidence remains from which the jury could conclude beyond a reasonable doubt that the cocaine in Veronica Gardner's apartment belonged to the defendant. State v. Mondy, 532 So. 2d 863 (La.App. 4th Cir.1988), writ denied, 540 So. 2d 338 (La.1989).
This assignment of error is meritless.
UNTIMELY PRIEUR NOTICE
In the defendant's fifth assignment of error, he contends that he received insufficient notice of the State's intention to call Sheila Anderson as a witness and to introduce at trial evidence of the June 5, 1992 arrest. We do not agree.
*517 The State filed its notice on Wednesday, September 29, 1993. A hearing to determine the admissibility of the evidence was set for the following Friday, October 8. On Tuesday, October 12, the trial began; Lieutenant Mestayer was called as the State's first witness. Sheila Anderson's testimony was taken the following day, October 13.
The purpose of the discovery rules of the Code of Criminal Procedure is to eliminate the unwarranted prejudice which could arise from surprise testimony. State v. Toomer, 395 So. 2d 1320 (La.1981). However, the failure of the state to comply with discovery does not warrant automatic reversal; rather, the defendant must show that the failure was prejudicial, and as such, constitutes reversible error. State v. Ray, 423 So. 2d 1116 (La.1982).
In the case sub judice, even assuming that the notice was "late," the defendant has failed to demonstrate how he was prejudiced thereby. Guidry had approximately a week and a half before the Prieur hearing and two weeks before trial to prepare his response to the State's motion, and he has made no allegation that he was unable to produce evidence or witnesses as a result of the untimely notice. Moreover, after deciding to go forward with the Prieur hearing, the trial judge told defense counsel that "if, at the conclusion, you feel prejudiced some kind of way, Mr. Wooderson, I'll entertain whatever motion you want to make." Defendant did not avail himself of this opportunity, nor did he request a continuance of the trial date. Accordingly, we find no reversible error in the State's failure to give earlier notice of its intention to call Sheila Anderson as a witness and to introduce at trial evidence of the June 5, 1992 arrest.
SUFFICIENCY OF THE EVIDENCE
When the issue of sufficiency of the evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino v. King, 436 So. 2d 559 (La. 1983) (citing State v. Richardson, 425 So. 2d 1228 (La.1983)).
Count I: Attempted First-Degree Murder
LSA-R.S. 14:30(A)(2) defines first-degree murder as "the killing of a human being [w]hen the offender has a specific intent to kill or to inflict great bodily harm upon a ... peace officer engaged in the performance of his lawful duties." A conviction for attempted murder requires a showing that the defendant had specific intent to kill and committed an act tending to accomplish that purpose. State v. Butler, 322 So. 2d 189 (La.1975).
The defendant suggests in brief that he did not know that Agent Welsh was a police officer. We find this contention unbelievable. At trial, David Jefferson testified at length as to the events surrounding the beating of Agent Welsh:
"Q: All right. So what happened once y'all got back to the corner and y'all talked about the fact that there were some narcs and Harrison had brought a narc with him?
A: We was walking down there. And I saidwe sat, talking, and I said, "He must be wired or something, you know." And he told mehe said to check him, you know.
Q: Whenwhen you say "he", who are you talking about?
A: Troy. To see if he had a wire, you know. I told him, "Yeah, I'm gonna' check him." I kept saying, "I'm gonna' check him, you know." So when I got down there toward the car, you know, I asked him if heno, Troy asked him if he had something.
Q: Okay. Now, let's back up. So there's no doubt in your mind that you and Troy knew that the person that was in the car, *518 Mr. Welshyou later learned his name was a narcotics agent, a police officer?
A: Yes, sir.
Q: Just so the jury will know, y'all were down on the corner all this time all this was going on, talking about the police being in the area?
A: Yes, sir."
In a statement given to police after he was arrested, Guidry himself admitted that he knew Agent Welsh was an undercover officer:
"I said, `David, that dude a cop, yeah.' So David said, `You want me to search him?' So David did like this and he had a beeper on his side.... And then, after all the narcotics, them two pulled up first, and then after that we took off. I said [to David], `I told you that dude was a cop.'"
We find that the State met its burden of proving that Guidry knew that the victim was a police officer.
Defendant also points out that "threatening to kill someone in an altercation is not specific intent to prove that you intended to carry out that threat." While we might ordinarily agree, we find that Jefferson's testimony belies Guidry's contention that he did not intend to kill Agent Welsh:
"Q: Okay. Did you see whatwhere Troy was as you were striking Mr. Welsh?
A: He was on this side of me. When I was on top of him, he was stomping him in the head. (Witness indicates.)
Q: Well, where were you when Mr. Guidry was stomping him on the head?
A: I was on the ground over him.
Q: And what part of Mr. Guidry's foot was he using to stomp on Mr. GuidryMr. Welsh's head?
A: About the bottom part of his foot.
Q: And how highif you could, demonstrate to the jury how he washow he was striking him.
A: He was stomping him on his head like that. (Witness indicates.)
Q: All right.
A: Hard.
Q: And during that time, was Mr. Guidry saying anything or directing you to do anything to Mr. Welsh?
A: He was screaming, "Kill the bitch."
Q: Kill the what?
A: The bitch.
Q: Was there a point in time when Mr. Welsh was basically out of it, just laying there, notnot conscious?
A: Yes, sir.
* * * * * *
Q: Okay. And what did Mr. Guidry do afteras Agent Welsh laid on the ground?
A: He was still stomping him.
Q: And was Mr. Welsh unconscious at that time?
A: Yes, sir.
Q: Okay. And what part of the body was he stomping on?
A: On his head.
Q: How long did that continue, the stomping?
A: `Til the police pulled up."
After the incident, Agent Welsh was taken to the hospital and underwent surgery to repair his broken jaw. Agent Welsh testified at trial that he continues to have problems with memory loss and seizures, which his physicians attribute to the severe beating he received.
In addition to Jefferson's compelling testimony, the State introduced at trial pictures of the defendant, taken after his arrest, and of Agent Welsh, taken while he was in the hospital. Agent Welsh was a relatively small man. He was described by another officer as approximately 5'4" tall, and weighing about 120 pounds. On the other hand, Guidry is obviously much larger and stronger, approximately 6'0" tall, and weighs considerably more than Agent Welsh. We have no difficulty believing that Guidry fully intended to kill Agent Welsh had he not been stopped by the timely arrival of the police.
Viewed in the light most favorable to the prosecution, it is clear that the jury could have reasonably found that Guidry had specific intent to kill a police officer in the line of duty and that he acted toward accomplishing this purpose.
*519 Count II: Possession of Cocaine
LSA-R.S. 40:967(C) prohibits the knowing or intentional possession of cocaine. An additional penalty is provided in Subsection (F) if the amount of cocaine possessed is more than 28 grams, but less than 200 grams. Possession of illegal drugs can be in the form of actual possession, if the contraband is found on the defendant's person, or constructive possession, if the circumstances show that the contraband is subject to the defendant's dominion and control. State v. Trahan, 425 So. 2d 1222 (La.1983); State v. Williams, 608 So. 2d 266 (La.App. 3d Cir. 1992).
Whether a defendant has dominion and control over illegal drugs involves an analysis of the
defendant's knowledge that illegal drugs are in the area; the defendant's relationship with the person found to be in actual possession; the defendant's access to the area where the drugs were found; the evidence of recent drug use by the defendant; the defendant's physical proximity to the drugs; and any evidence that the particular area was frequented by drug users.
State v. Tasker, 448 So. 2d 1311, 1314 (La. App. 1st Cir.), writ denied, 450 So. 2d 644 (La.1984) (citing Bujol v. Cain, 713 F.2d 112 (5th Cir.1983)). The determination of whether there is possession sufficient to convict depends upon the facts peculiar to each case. State v. Trahan, supra (citing State v. Cann, 319 So. 2d 396 (La.1975)).
David Jefferson testified at trial that on many occasions, he went with Guidry to Veronica Gardner's apartment to retrieve cocaine. If Veronica was not at home, Guidry went to the apartment of another sister who lived in the same apartment complex and picked up a key. Jefferson stated that Guidry would go to the back of Veronica's apartment and come out with crack cocaine, which they would either sell or use themselves.
On the morning of June 11, 1992, Guidry and Jefferson went to Veronica's apartment. As he had done many times before, Guidry went into a back room and came out with cocaine, and the two men left. Guidry cut one ounce of the crack cocaine into pieces with a razor blade and put the pieces into a medicine bottle. When Veronica Gardner's apartment was searched later that evening, a medicine bottle containing crack cocaine was recovered from the bedroom; the defendant's fingerprint was found on the bottle.
Under the Jackson standard of review, we find that the evidence presented was sufficient to prove Guidry's constructive possession of the cocaine found in his sister's apartment.
This assignment of error lacks merit.
EXCESSIVENESS OF THE SENTENCES
The defendant next contends that the trial court erred in sentencing him, a first-time felony offender, to consecutive sentences of fifteen years for attempted first-degree murder and twenty years for possession of more than 28 grams of cocaine. We disagree.
Regarding the order of the trial judge that the sentences be served consecutively, Article 883 of the Louisiana Code of Criminal Procedure provides in pertinent part:
"If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently...."
At sentencing, the trial judge made the following comments:
"I feel, too, that the sentences should run consecutively, because they're two completely independent things. One could easily have happened without the other. And had they both really been the fruit of a common incident and naturally flowed from it, I would make them run concurrently. But I think they should run consecutive for that reason. One could have been committed without the commission of *520 the other very, very easily, unlike most charges that arise out of one incident."
The language of Article 883 clearly contemplates that if the defendant is convicted of two or more independent offenses, the sentences are to run consecutively. However, when the offenses are based on the same act or transaction or constitute parts of a common scheme or plan, the sentences will generally run concurrently. In the case sub judice, the trial court found that the defendant's crimes were independent of each other, and were not based on the same act or transaction nor parts of a common scheme or plan. We find no error in this determination. Defendant's sentences were properly ordered to run consecutively rather than concurrently.
Nor do we find that the sentences imposed are excessive. In State v. Smith, 93-0402 (La. 7/5/94), 639 So. 2d 237, our Supreme Court held that when the trial judge adheres to the requirements of Article 894.1 of the Louisiana Code of Criminal Procedure and imposes a sentence within the statutory range, an appellate court is limited to a traditional review of the sentence for constitutional excessiveness.
The record of the present case indicates that in compliance with Article 894.1, the trial judge adequately stated the considerations taken into account and the factual basis for the sentences imposed. At sentencing, the trial judge stated that he had considered numerous letters and a petition submitted on behalf of the defendant, the defendant's extensive criminal record, and the appropriate sentences recommended by the sentencing guidelines. The judge further commented:
"Considering all the information available to me from my personal presence at the trial where the jury found you guilty and my review of everything I've been able to find out about you, I feel that that sentence is appropriate. I've given it a lot of thought, a lot of thought, because I'm aware of the heavy responsibility on me. And to the extent that it may deviate from the guidelines, I feel it's appropriate because of what I have said and, of course, because of my many years of experience in the criminal justice system in this area. I think a lesser sentence would deprecate the seriousness of these offenses; that you're in need of correctional treatment that would best be served by the sentences that I've imposed; and that there is indeed a need to try to deter others from what has become a cancer in our society, and that is drugs and the potential harm and risk that comes to those who try to solve these drug cases because there's no victims to report them. If there's a stabbing or a shooting, the victim will say who did it. You don't have that in a drug case. So you have to send out these undercover agents. It's very important to society that no harm at all ever comes to them, no matter what."
As both sentences were within the statutory range,[3] all that remains for this court to decide is whether the defendant's sentences are constitutionally excessive. The standard for appellate review is whether the sentence is "nothing more than the purposeless imposition of pain and suffering" or is "grossly out of proportion to the severity of the crime." State v. Davis, 449 So. 2d 452, 453 (La.1984) (citations omitted). Under this standard, we decline to hold that the defendant's sentences of fifteen years on the attempted first-degree murder charge and twenty years on the possession of cocaine charge are constitutionally excessive.
This assignment of error is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his eleventh assignment of error, the defendant cites several instances which he allege constitute ineffective assistance of counsel at trial and, ultimately, reversible *521 error. After setting forth the applicable law, we will discuss each allegation in turn.[4]
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court confronted for the first time a defendant's claim of "actual ineffectiveness" of counsel's assistance in a case going to trial. The Court established a two-part test for judging a claim of ineffective assistance of counsel:
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. 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 is 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."[5]
466 U.S. at 687, 104 S.Ct. at 2064.
In discussing the second element, prejudice to the defendant, the Court was careful to note that it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, the defendant must show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." 466 U.S. at 695, 104 S.Ct. at 2068-69. In making this determination, the reviewing court must consider the totality of the evidence before the jury. With these principles in mind, we turn to the defendant's specific allegations of ineffectiveness.
1. Marco, the Columbian drug dealer
At trial, the State called Thaddeus Robinson of the New Iberia Police Department as an expert witness in the field of narcotics interdiction. Agent Robinson testified that over the course of several months, Troy Guidry had wired thousands of dollars to a woman named Margorie Butler who lived in Houston, Texas:
"Q: Okay. And does Margorie Butler have connections to any persons in the Houston area that you were conducting an investigation on regarding narcotics transactions?
A: A Columbian, sir.
Q: And what was that person's name, sir?
A: Marco.
Q: Did there come a time, Agent Robinson, when you received or recovered a picture that was taken in Louisiana involving Margorie Butler and this person named Marco?
A: Yes, sir.
BY MR. HANEY:
I'd like this marked as State's Exhibit 49.
Q: I show you what's been marked as State's Exhibit 49 and ask if you recognize this photo, sir.
A: Yes, sir.
Q: Okay. What does that photograph depict, sir?
A: Troy Guidry, the Columbian drug dealer, Margorie Butler, and I think that's Jackie Dauterive.
*522 Q: Okay. And Jackie Dauterive is what relationship to Mr. Guidry?
A: Is aa girlfriend."
Counsel for the defendant, J. Michael Wooderson, made no objection to this line of testimony, nor to the introduction of the photograph. Later, the "Marco" line of questioning resumed:
"Q: Did you attempt to determine what Miss Butler's relationship was with Mr. Guidry?
A: Yes, sir, we did.
Q: Do you know whether or not Mrs. Butler and this person by the name of Marco visited the New IberiaSt. Martin Parish area?
A: Yes, sir. I believe that picture was taken during the St. Martinville Mardi Gras.
Q: All right. And it would be fair to say that there's aan ongoing investigation by the Houston Police Department involving Marco's cocaine trafficking activities in the Houston area?
A: Possibly the D.E.A."
At this point, Mr. Wooderson objected for lack of foundation. The trial court overruled the objection and allowed the witness to answer. On cross-examination, Mr. Wooderson asked Agent Robinson to explain his statements about Marco:
"Q: In other words, your testimony is that some fellow named Marco is implicated with Troy Guidry in doing something committing some kind of crime?
A: No, sir. A Columbian drug dealer by the name of Marco was associated with Troy Guidry and his drug dealings, sir."
Later in the trial, the State called Lieutenant Claude Hills, the narcotics supervisor for the New Iberia Police Department. Lieutenant Hills testified as to the relationship that his department has with law enforcement agencies in Texas:
"Q: Okay. And do youwhen you get information about what's going on in New Iberia, do you request Houston to assist you and try getting intelligence information on thison these particular people?
A: That's correct. If we can associate them with someone in Houston, we'll contact their analysis group.
Q: Were you able to associate anybody in the Houston area with Mr. Guidry as it relates to drugs?
A: That's correct.
Q: And who was that, sir?
A: There's a subject only known to us as Marco.
Q: And to your knowledge, has Marco been in the New Iberia area with Mr. Guidry on occasions?
A: Yes.
Q: And have you spoken with people who've seen Mr. Guidry in the presence of Marco on several occasions?
A: I spoke to several people who have seen Mr. Guidry with Marco on more than one occasion.
* * * * * *
Q: And did they identify Mr. Guidry as having a particular relationship with Marco?
A: I was informed that Marco was Mr. Guidry's supplier."
Again, Mr. Wooderson made no objection.
On appeal, defendant now contends that he was severely prejudiced by all of the "Marco" evidence, and in particular, by the introduction of the photograph taken of him with Marco and Margorie Butler. The State argues that the evidence was relevant to show that the defendant was in the business of selling narcotics and served to corroborate the fact that the cocaine found in Veronica Gardner's apartment belonged to the defendant.
Under the facts of this case, we do not see sufficient prejudice in the line of questioning regarding Marco, or in the introduction of the photograph, to justify a reversal. Even had this testimony and the photograph been excluded at trial, the State's remaining evidence overwhelmingly establishes the defendant's guilt beyond a reasonable doubt. Stated in another way, the defendant has failed to demonstrate a reasonable probability that, absent the alleged errors, the jury would have reached a different result.
*523 2. Judge's comment on the evidence
Defendant also claims that his trial counsel was ineffective because counsel failed to object to a comment on the evidence made by the trial judge.
While the defendant was in police custody on the night of June 12, 1992, part of his statement to Detectives Thaddeus Robinson and Leslie McDaniels was taped. Because portions of the tape were inaudible or difficult to understand, the tape was transcribed by a court reporter. When the State sought to introduce both the tape and the transcript into evidence at trial, counsel for the defendant had no objection to the tape itself, but objected to the transcript on the grounds that the tape was the best evidence of what Guidry told police. The trial judge declined to rule immediately, and told the jury that "we'll come back to that issue later." The following morning, Judge Bienvenu made the following statement:
"Okay, ladies and gentlemen, you will recall yesterday when the State offered thisthis tape into evidence, as well as a transcription or a typewritten copy of what's supposed to be on the tape, the defense had no objection to the tape itself but had an objection to the transcription. What Mr. Haney had in mind was to play the tape and give each of you a copy of the transcription and let you follow along. The basis for the objection is that the tape is the best evidence of its contents, not what somebody else typed out by listening to it.
Well, I feel that the law is that, while it is true that the tape is the best evidence, that it is permissible, if it would help you, to allow you toto read along with ato follow along with a transcription while the tape is played. I listened to it, and I read the transcription. The tape is difficult, and there's a lot of inaudible portions of it. Of course, the court reporter who transcribed it, apparently ... took great pains to try to listen carefully and maybe play back and that sort of thing, it would seem to me. But she has a lot of portions where she just has `inaudible', you know. So weif you can understand what the tape says, then you can supply those things, but she couldn't, you know.
Andand II think, for me, and II hesitate toto comment on the evidence, but I think I need to tell you this. Before I made the decision, I felt it was important that I listen to the tape and read along, as you would be doing. I don't find anywhere any attempt to falsify anything. There may be some omissions where the tape is saying something and the court reporter maybe is not typing it out. There may be some things that you will disagree with her interpretation; in other words, where a word or two may be different. But I think, generally speaking, the transcription will be of help to you. Itit's not a clear tape, and I think, without the transcription ... you could understand the evidence better by having the transcription. Sososo we'll go along with that.
Now, you understand that the tape is the best evidence. So, if you find any variances or differences between the tape and the transcription, you go with the tape. That's actually what was said, you understand? Everybody comfortable with that?
Okay. With that, we can move along."
While the exhibits were being passed to the jury, Mr. Wooderson noted for the record his objection to the court's ruling and to the introduction of the transcript. Judge Bienvenu responded:
"BY THE COURT:
All right. But, as I understand it, there's no objection toto my explanation to the jury.
BY MR. WOODERSON:
No, Your Honor.
BY THE COURT:
All right. Just to the transcript itself being offered.
BY MR. WOODERSON:
Yes, Your Honor."
The defendant argues in brief that the trial judge violated the provisions of Article 772 of the Code of Criminal Procedure by commenting on the evidence, which placed a "stamp of approval" on the authenticity of the transcript.
*524 A trial judge should refrain from making such improper comments in the presence of the jury. And it goes without saying that defense counsel should have immediately objected to the remarks. In the present case, however, the defendant was not so prejudiced by either the remarks or the failure to object as to require a reversal under Strickland. Therefore, we find the error harmless.
3. Failure to request responsive verdict
The defendant's third allegation of ineffective assistance of counsel concerns his attorney's failure to request that the jury be charged with second-degree battery and attempted negligent homicide as responsive verdicts to the charge of attempted first-degree murder.
Article 814(A)(2) of the Code of Criminal Procedure sets forth the only responsive verdicts which may be rendered when the offense charged is attempted first-degree murder. They are: guilty, guilty of attempted second-degree murder, guilty of attempted manslaughter, guilty of aggravated battery, and not guilty. When responsive verdicts are mandated by Article 814, as in this case, the trial court is without authority to alter or add to the legislatively prescribed responsive verdicts. State v. Square, 433 So. 2d 104 (La.1983) (citations omitted); State v. Major, 597 So. 2d 108 (La.App. 4th Cir. 1992). Therefore, we find that counsel did not act unreasonably in refusing to comply with the defendant's request.
4. David Jefferson's testimony
The defendant next contends that counsel was ineffective for failing to object when the prosecutor asked David Jefferson on direct examination whether he and Guidry knew that Agent Welsh was a police officer.
"Q: Okay. Now, let's back up. So there's no doubt in your mind that you and Troy knew that the person that was in the car, Mr. Welshyou later learned his namewas a narcotics agent, a police officer?
A: Yes, sir."
Defendant states in brief that since Jefferson is not an expert in the field of psychiatry or psychology, the State should not have asked Jefferson to reach a conclusion as to the defendant's state of mind. However, the purpose of the State's question was not to elicit an expert opinion from David Jefferson. It is clear from the context of this testimony that both Guidry and Jefferson knew that Agent Welsh was an undercover police officer; the State was simply trying to clarify this fact for the benefit of the jury. We also note that Jefferson's testimony was not the only evidence presented which proved that Guidry knew that Agent Welsh was a police officer. After he was arrested, Guidry himself admitted that when he first saw Agent Welsh, he told Jefferson, "David, that dude a cop, yeah." For these reasons, defendant suffered no prejudice by the failure of counsel to object to Jefferson's testimony.
5. Aggregate value of all errors
Finally, defendant asserts a "catch all" claim of ineffectiveness, suggesting that although each claim listed under this assignment of error may not sufficiently prove ineffectiveness of counsel, the aggregate value of all alleged errors committed by defense counsel constitutes reversible error.
Upon careful review of the entire record, we do not find that defendant has established his claim of ineffective assistance of trial counsel. The errors of which defendant complains do not rise to the level of a reasonable probability that absent the errors, the jury would have a reasonable doubt respecting guilt. The evidence against the defendant was strong, and we find, very easily proved his guilt beyond a reasonable doubt.
This assignment of error is without merit.
ERRORS PATENT
Pursuant to LSA-C.Cr.P. Art. 920, we have reviewed the record for errors patent, and find none.
CONCLUSION
For the reasons assigned, defendant's conviction and sentences are affirmed.
AFFIRMED.
NOTES
[*] Judge Lucien C. Bertrand, Jr., Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.
[1] Assignments 6, 7, and 8 have been abandoned by the defendant in his brief and will not be considered, in accordance with Rule 2-12.4 of the Uniform Rules of the Courts of Appeal.
[2] The defendant will suffer no prejudice by our ruling on this assignment of error since all issues raised in the two pro se motions have been presented in his appeal.
[3] On the attempted first-degree murder charge, defendant could have received a sentence of up to fifty years at hard labor. LSA-R.S. 14:27(D)(1). On the charge of possession of more than 28 grams but less than 200 grams of cocaine, defendant could have received a sentence of five to thirty years at hard labor plus a fine of not less than $50,000, nor more than $150,000. LSA-R.S. 40:967(F)(1)(a).
[4] A claim of ineffective assistance of counsel is more properly raised in the trial court by an application for post-conviction relief. This enables the district judge to conduct a full evidentiary hearing. State v. Seiss, 428 So. 2d 444 (La. 1983) (citations omitted). However, if the claim is raised on appeal by an assignment of error and the record contains evidence sufficient to decide the issue, we may consider the defendant's claim in the interest of judicial economy. Id. at 449.
[5] Writing for a majority of the Court in Strickland, Justice O'Connor noted that it is unnecessary for a reviewing court to address both components of the inquiry if the defendant makes an insufficient showing on one. "In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." 466 U.S. at 697, 104 S.Ct. at 2069. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2140132/ | 917 F. Supp. 432 (1996)
Elaine SCHENCK
v.
LIVING CENTERS-EAST, INC. et al.
Civ. A. No. 94-2514.
United States District Court, E.D. Louisiana.
February 21, 1996.
*433 *434 Jack W. Harang, New Orleans, LA, for plaintiff.
Thomas C. Cowan, New Orleans, LA, for defendant.
ORDER AND REASONS
BERRIGAN, District Judge.
Defendant, Living Centers-East, Inc. ("Living Centers"), moves for partial summary judgment against five of the plaintiff's six claims. For the reasons stated below, the motion is DENIED as to Counts One, Three and Five and GRANTED as to Counts Four and Six.
Ms. Thelma Caruso, mother of the plaintiff, was a nursing home resident in the Jefferson Health Care Center[1] from May, 1988 until September, 1993. The plaintiff alleges that Ms. Caruso was hospitalized on a number of occasions for broken bones and other injuries during that time, eventually resulting in partial amputation of both her legs. After the second amputation, Ms. Caruso's family chose not to return her to the home. Ms. Caruso is now deceased, apparently for causes unrelated to this litigation. The plaintiff has now brought suit, alleging on a variety of legal grounds, that the defendant failed to provide adequate care for her mother at the nursing home. The defendant seeks summary judgment on five of the six claims on the basis that the allegations have either prescribed or they are otherwise invalid under applicable law.
Summary judgment is appropriate where the record indicates no material facts in dispute and that the moving party is entitled to judgment as a matter of law. Fed.R.Civil Proc. 56(c). No genuine issue of fact exists if the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986). A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the *435 nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50, 106 S. Ct. at 2511 (citations omitted). Additionally, summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). If the moving party can demonstrate the absence of an essential element of its opponent's case, the burden shifts to the nonmoving party to "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S. Ct. at 2553.
Count One Breach of Contract
In Count One, the plaintiff alleges that the defendant breached a contract to provide Ms. Caruso with reasonable and safe care and to treat her with dignity and respect. The petition also alleges bad faith. The particular contract at issue is an "Admissions Agreement" to the nursing home, in which the home promised "reasonable care" and also pledged to protect the basic constitutional, statutory and regulatory rights of the residents. Among the rights allegedly incorporated are those set forth in 42 U.S.C. § 1396r(b)(2) which commit the home to providing services that will "maintain the highest practicable physical, mental, and psychological well-being of each resident ..."
Breach of contracts under Louisiana law have a ten year liberative prescription period. La.S.Ann.Civil Code art. 3499.
The defendant argues that the allegations in the complaint exclusively sound in tort with a one year prescriptive period. The defendant moves for the contract count to be dismissed.
While no Louisiana Supreme Court decision has dealt with this precise issue in this setting, an appellate decision, Free v. Franklin Guest Home, Inc., 397 So. 2d 47 (La.App. 2nd Cir.1981), is directly on point. Suit was filed against a nursing home on behalf of a resident, alleging abuse and neglect over a period of several years. The issue was whether the allegations were based exclusively on tort, hence one year's prescription, or breach of contract, hence ten years. The plaintiff argued that the incidents of abuse and neglect were tortious but also violated a written contract, specifically the "Admission Agreement" and a document entitled "Patient's Rights." In the Admission Agreement, the home agreed to exercise "reasonable care" toward the resident; the Patient's Rights document pledged that the resident would not be abused and would be treated with consideration and respect.
The Second Circuit concluded that "there was clearly a contractual relationship between the nursing home and Mr. Free ..." 397 So. 2d at 48 and found the ten year prescriptive period to apply. The court considered it "well settled" that the same act or omission could constitute both a tort and a breach of contract. 397 SO.2d at 49. The court also concluded that even if the language of the contract added nothing to the general obligations of a nursing home towards a resident in the absence of an express contract, the home nonetheless chose to enter the contract and was thereby bound in contract. The defendant in Free had relied on a series of cases that held that actions for medical malpractice against a physician or a hospital are in tort and not contract, unless the doctor promised a particular result. The Second Circuit distinguished those cases on the basis that (1) in this instance a written contract existed, with contractual obligations and (2) that those other suits involved claims against an individual physician. Finally, the court appeared to find significant that the plaintiff's allegations involved several incidents of neglect and abuse which, when viewed cumulatively, were sufficient to amount to a breach of the contract if proven.
The defendant apparently concedes that if Free is the applicable law, the breach of contract claim survives and the ten year liberative prescription applies. The defendant instead argues that Free has been either directly or indirectly rejected by subsequent *436 state caselaw. This court disagrees. Writs were applied for in Free and denied by the Louisiana Supreme Court. While writ denials are necessarily cryptic in significance, it is noteworthy that the only issue on the writ application was the one at issue here. The Free decision has also been cited favorably by a number of subsequent appellate cases. In Dillon v. Hospital Affiliates of Baton Rouge, 407 So. 2d 493 (La.App. 1st Cir.1981), the Louisiana First Circuit cited Free in holding that the ten year prescription applied to a hospital which was alleged to have breached its contractual obligation to provide due care. Free has also been cited for the principle that a hospital owes a duty of care to the patients that is independent of any obligation owed by the treating physician. Bossier v. DeSoto General Hospital, 442 So. 2d 485 (La.App. 2nd Cir.1983); see also Martin v. Southern Baptist Hospital of New Orleans, 444 So. 2d 1309 (La.App. 4th Cir. 1984) (without citing Free, the Fourth Circuit found that one year prescription did not apply to a claim that a hospital breached its obligation to provide due care). Free has also been repeatedly cited for the principle that the same act or omission can constitute a tort and a breach on contract. Succession of Dubos, 453 So. 2d 323 (La.App. 4th Cir. 1984); Ridge Oak Development, Inc. v. Murphy, 641 So. 2d 586 (La.App. 4th Cir.1994); Dubin v. Dubin, 641 So. 2d 1036 (La.App. 2nd Cir.1994); Reeves v. Dixie Brick, Inc., 403 So. 2d 792 (La.App. 2nd Cir.1981).
The defendant cites Kildron v. Shady Oaks Nursing Home, 549 So. 2d 395 (La.App. 2nd Cir.1989) and McCartney v. Columbia Heights Nursing Home, Inc., 634 So. 2d 927 (La.App. 2nd Cir.1994) as indications that Free has been rejected. In both of those cases, the litigation was brought as a tort case, apparently within a year of the underlying incident. A breach of contract claim was not even raised, much less was one at issue. The cases did not mention Free and are not inconsistent with the principle that the same act can constitute a tort as well as a contractual breach.
The defendant also relies on Roger v. Dufrene, 613 So. 2d 947 (La.1993). In Dufrene, the Louisiana Supreme Court concluded that a lawsuit against an individual insurance agent for negligence was analogous to a suit by a patient against a physician and therefore the one year prescription for tort applied. Dufrene is simply inapplicable factually. That decision is consistent with the caselaw acknowledged and distinguished in Free, namely that allegations of negligence against individual physicians (or in the case of Dufrene, individual insurance agents) are separate and distinct from a suit against an entity for breach of a contractual obligation to provide due care. The defendant also understandably cites the case of Freedman v. ARA Living Centers-East, Inc., 1994 WL 180098 (E.D.La.1994), which found that Dufrene had in fact effectively overruled Free and that a one year prescriptive period applies to allegations such as here against a nursing home. We recognize and respect the decision of another section of this court but in this instance, simply disagree with that decision.
The defendant further cites Kozan v. Comstock, 270 F.2d 839 (5th Cir.1959), Sciacca v. Polizzi, 403 So. 2d 728 (La.1981) and Cherokee Restaurant, Inc. v. Pierson, 428 So. 2d 995 (La.App. 1st Cir.1983). Again, each of those cases dealt with negligence suits filed against individuals, circumstances that were factually distinguished in Free.
In various reply briefs, the defendant further cites Harrison v. Gore, 660 So. 2d 563 (La.App. 2nd Cir.1995). In that case, a student sued a school after she was allegedly molested by a coach. She claimed a ten year prescriptive period based on breach of contract. Both the trial court and appellate court found that the contract at issue, the tuition agreement, promised only a physical plant and educational personnel so no contractual duty was owed. While the decision also contains language indicating that even if the contract language had covered the allegation raised, one year prescription would still apply, the facts are distinguishable from the specific contract and circumstances existing here.
Finally, the defendant argues that under La.R.S. 9:5628, actions against nursing homes, be they in tort or breach of contract, are limited to one year prescription. The *437 court reads the statute differently. The statute encompasses hospitals but says nothing about nursing homes. Defendant argues that the reference in the statute to R.S. 40:1299.41(A) is meant to include nursing homes in the definition of hospital. In fact, prior to 1990, the statute included hospitals but made no mention of 40:1299.41(A). In 1990, the legislature added "or community blood center or tissue bank as defined in R.S. 40:1299.41(A)." Clearly the reference to Title 40 refers back to the blood centers and tissue banks, but not to the word hospital.
The court finds that Free is still good law and that the ten year prescriptive period for breach of contract applies.
The court emphasizes however that this conclusion is limited to and based on the unique circumstances of a nursing home setting, which is also the factual basis in Free. Residents are in the care and custody of the home on a 24-hour basis, with all their needs necessarily supplied by the facility. Residents are almost invariably in poor physical and/or mental health; they are frequently incompetent and unable to comprehend much less protest any mistreatment or neglect; their families likewise are not in a position to readily know whether injuries are caused by genuine accidents or whether they result from neglect or abuse. See in particular, "The Plight of Elderly Nursing Home Residents in Louisiana," 38 Loyola Law Review 153 (1992). These various factors make such residents particularly vulnerable to neglect and a variety of possible abuses with detection arguably difficult ... unlike the situation where a presumably competent person seeks a consultation with a physician for a particular problem or even requires hospitalization for a particular malady. In 1985, the Louisiana legislature recognized the unique dangers facing nursing homes residents by stating that such individuals are "isolated from the community and often lack the means to assert their rights as individual citizens." La.R.S. 40:2010.6. The legislature enacted a lengthy and detailed residents' "bill of rights" applicable to all nursing homes, which among other commitments, pledges "adequate and appropriate ... care," courteous and fair treatment, and freedom from "mental and physical abuse." La.R.S. 40:2010.8. The statute also provides for a cause of action to sue if the rights are violated. La.R.S. 40:2010.9. In light of this clear legislative concern for nursing home residents and the continued viability, in this court's opinion, of the Free decision, the defendant's motion for summary judgment regarding the contractual claim is denied.
Count Three Breach of Fiduciary Duty
The plaintiff alleges that Living Centers-East violated a fiduciary duty in its inadequate care of Ms. Caruso. The defendant argues that as a matter of law no such fiduciary duty existed. Ironically, in light of defendant's position as to Count One, part of the defendant's argument is that this case involves a contractual relationship and Louisiana courts have consistently declined to impose a fiduciary duty in that context. The defendant also points out that no specific statute imposes a fiduciary relationship on health care providers and patients.
The defendants are correct in that the mere existence of a contractual relationship does not alone create a fiduciary duty. Nor could the court find any case discussing whether or not a fiduciary relationship necessarily exists between a nursing home and its residents. Breaches of fiduciary commitments appear to arise most frequently in financial contexts, where someone has entrusted their finances to the care and custody of another, such as a conservator, receiver or trustee in bankruptcy. See La.R.S. 9:3801(2). Nevertheless, the definition of a fiduciary is not bound to a particular type of transaction; rather it is determined by the nature of the relationship between the parties.
The dominant characteristic of a fiduciary relationship is the confidence reposed by one in the other and (a person) occupying such a relationship can not further his own interests and enjoy the fruits of an advantage taken of such relationship.
Plaquemines Parish Commission Council v. Delta Development Co., 502 So. 2d 1034, 1040 (La.1987).
"The duty of loyalty which results from the position of trust distinguishes the fiduciary *438 relationship." Gerdes v. Estate of Cush, 953 F.2d 201, 203 (5th Cir.1992).
As noted already, many if not most nursing home residents are in a vulnerable physical and/or mental state. Placing a loved one in such a facility necessarily entails trust on the part of the family as well as the resident. Since the residents reside in the home, the family has comparatively limited access and opportunity to learn if the resident is neglected or otherwise mistreated. If entrusting one's money to a receiver or conservator creates a fiduciary as well as business relationship, one would hope at least in principle that entrusting a valued family member to the care of a business entity such as a nursing home would carry similar responsibilities.
The claim requires factual development to determine if in this case such a fiduciary duty was created. For that reason, the request for summary judgment is denied.
Count Four Negligent Infliction of Emotional Distress
The plaintiff claims that she suffered emotional distress as a result of witnessing the harm caused to her mother by the conduct of the defendant. The defendant cites the deposition testimony of the plaintiff and alleges that her level of distress is insufficient to reach the level required for a legal claim.
In Lejeune v. Rayne Branch Hospital, 556 So. 2d 559 (La.1990), the Louisiana Supreme Court set forth the standards necessary for a claim for mental pain and anguish by a person not directly injured. The emotional distress sustained must be serious. "Serious emotional distress, of course, goes beyond simple mental pain and anguish ... (it must be) both severe and debilitating." 556 So. 2d at 570. Examples given include "neuroses, psychoses, chronic depression, phobia and shock." Ibid.
In the deposition excerpt cited by the defendant, the plaintiff stated that her mother's condition "got me down sometimes" but she did not seek any medical care. At oral argument, the plaintiff indicated it had no other evidence to present on that issue.
Since the plaintiff apparently did not suffer the "severe and debilitating" type of mental distress necessary for this claim, the summary judgment motion is granted.
Count Five Violation of Statutory Duty Owed to Nursing Home Resident
In Count Five, the plaintiff alleges the defendant violated Ms. Caruso's rights under La.R.S. 40:2010.8, the particular statute intended to protect nursing home residents. The defendant seeks dismissal of the claim on the basis that it is duplicative of the tort claim.
La.R.S. 40:2010.9 provides that if the resident's rights are violated, a cause of action arises against the nursing home for enforcement of the rights and damages for their breach. The statute also allows for attorney's fees and costs. The remedies provided are "in addition to and cumulative with other legal and administrative remedies available to a resident ..." § 2010.9(B).
The motion for summary judgment is denied.
Count Six Violation of Unfair Trade Practices and Consumer Protection
The plaintiff's fifth claim is brought under the Louisiana Unfair Trade Practices Act, La.Rev.Stat. 51:1401 et seq ("LUTPA"). The defendants argue that the plaintiff has not suffered an ascertainable loss and is not covered by the statute.
Section 1409A of the LUTPA provides in pertinent part:
Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice ... may bring an action individually but not in a representative capacity to recover actual damages.
The statute protects consumers and business competitors. Landrum v. Board of Commissioners, 758 F. Supp. 387 (E.D.La. 1991). It defines "consumer" as "any person who uses, purchases, or leases goods or services. La.Rev.Stat. 51:1402(1).
*439 In order to recover on a claim for damages under the LUTPA, the plaintiff must prove some element of fraud, misrepresentation or other ethical conduct. A trade practice is unfair under the statute only when it offends established public policy and is immoral, unethical, oppressive or unscrupulous. Omnitech International, Inc. v. Clorox Co., 11 F.3d 1316, 1332 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 71, 130 L. Ed. 2d 26 (1994).
Here, the plaintiff's claim fails for two reasons. First, this action is clearly brought by the plaintiff in a capacity representative of her deceased mother's estate. Although the Court was unable to find jurisprudence addressing this type of representation, any suit brought in a representative capacity is precluded by the clear language of the statute.
In addition, the Court finds that the plaintiff has not provided any evidence that supports either the type or level of egregious conduct sufficient to support a LUTPA violation. Mere breach of contract is not actionable under the LUTPA. Turner v. Purina Mills, Inc., 989 F.2d 1419 (5th Cir.1993). "The real thrust of the LUTPA, modeled after the Federal Trade Commissions Act ... is to deter injury to competition." Omnitech, 11 F.3d at 1331. Accordingly, the claim under the LUTPA is dismissed.
NOTES
[1] Jefferson Health Care Center is operated by Living Centers. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2456985/ | 985 S.W.2d 687 (1999)
Sid W. DICKERSON and Dottie M. Dickerson, Appellants,
v.
TRINITY-WESTERN TITLE COMPANY, Appellee.
No. 2-98-075-CV.
Court of Appeals of Texas, Fort Worth.
January 7, 1999.
Rehearing Overruled February 11, 1999.
Publication Ordered March 9, 1999.
*688 Ford, Yungblut, White & Salazar, P.C., Wesley C. Maness, Dallas, for Appellant.
Cantey & Hanger, L.L.P., Perry J. Cockerell, Fort Worth, for Appellee.
Panel B LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
OPINION
DIXON W. HOLMAN, Justice.
This is an appeal from a summary judgment. Appellants Sid and Dottie Dickerson sued Appellee Trinity-Western Title Company for money damages allegedly caused by Appellee in connection with its handling of the closing transaction at which Appellants acquired title to their new home. Initially, Appellants sued not only Appellee, but also Robert J. Panno d/b/a/ Polo Custom Homes, Henry S. Miller Residential, Inc., and HSM Residential Ltd. d/b/a/ Henry S. Miller Co. Realtors. The trial court granted summary judgment dismissing Appellants' entire cause against Appellee. Without objection from the parties, the court severed Appellants' cause of action against Appellee so the summary judgment could become final and appealable. After summary judgment, Appellants filed a request that the trial court file findings of fact and conclusions of law. The trial court did not comply, and Appellants filed a notice of past due findings and conclusions. See TEX.R. CIV. P. 296, 297. Appellants also filed a motion for new trial or rehearing, but the trial court did not grant a hearing on the motion. We affirm in part and reverse and remand in part.
BACKGROUND
In 1994, Appellants purchased a home in Keller, Texas, from the builder, Polo Custom Homes. The transaction was the subject of a New Home Earnest Money Contract, and the purchase and transfer of title from the builder to Appellants closed at Appellee's office. Appellants' suit complains that although the contract obligates the builder to furnish Appellants with a 10-year warranty on the home, none was furnished. In the trial court, Appellants alleged misrepresentation, negligence, deceptive trade practices, and that they are entitled to recover attorney fees. Appellee answered with a general denial and the affirmative defenses of estoppel, release, and statute of limitations. Appellee also requested attorney fees, which the trial court granted in the summary judgment.
ISSUES
Appellants' first issue states that the trial court should not have granted Appellee's motion for summary judgment. Their second issue asserts that the court should not have awarded Appellee attorney fees. Appellants argue that because Appellee was the escrow agent for the contract and closed the purchase at Appellee's office, Appellee impliedly warranted that at closing it would determine and assure (a) proper execution and delivery of all conveyances and documents necessary to close the purchase, (b) that all representations, promises, and numbers identified in the closing documents that Appellee drafted were true and correct, not false, and (c) that all consideration for the transaction had passed. It is undisputed that the contract required the builder to furnish Appellants a 10-year home warranty.
STANDARD OF REVIEW
In a summary judgment case, the issue on appeal is whether the movant, in this case Appellee, met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See TEX.R. CIV. P. 166a(c); Calvillo v. Gonzalez, *689 922 S.W.2d 928, 929 (Tex.1996); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. See Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am., 391 S.W.2d at 47.
In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Evidence that favors the movant's position will not be considered unless it is uncontroverted. See Great Am., 391 S.W.2d at 47.
The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant's cause of action or defense as a matter of law. See City of Houston, 589 S.W.2d at 678.
Here, Appellee filed its motion for summary judgment on August 12, 1997. Appellee is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of Appellants' cause of action cannot be established. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). To accomplish this, Appellee was required to present summary judgment evidence that negates an element of Appellants' claim. If that evidence was presented, the burden then shifted to Appellants to put on competent controverting evidence that proves the existence of a genuine issue of material fact with regard to the element challenged by Appellee. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). Appellee is entitled to summary judgment on one or more of its affirmative defenses if Appellee conclusively proved all elements of one or more of its affirmatives defenses. See Friendswood Dev. Co., 926 S.W.2d at 282. To accomplish this, Appellee was required to present summary judgment evidence that established each element of the affirmative defense as a matter of law. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).
THE MISREPRESENTATION CLAIM
As part of its summary judgment proof, Appellee attached the affidavit of Kim Cannady, one of its employees. In her affidavit, she states:
1. My name is Kim Cannady. I am an employee of Alamo Title Company of Tarrant County, Texas, formerly known as Trinity Western Title Company. I am over the age of eighteen and I have not been convicted of a crime. I have personal knowledge of the matters contained herein and they are true and correct.
2. I was the escrow officer in charge of the Panno/Dickerson closing. That closing took place on December 23, 1994. At the closing, Mr. Panno assured me that he would provide the application and paperwork required to accompany the payment of the warrant premium or fee to RWC in order to secure the warranty on the subject home. I contacted Mr. Panno several times after the closing and he informed me that he was working on securing the documentation required to secure the warranty. I also contacted RWC of Texas and was informed that the property that Mr. Panno sold to the Dickersons had never been enrolled under their warranty program. I could not disburse the $600.00 to RWC of Texas without the required documentation and/or on a home that had never been enrolled in the RWC Program.
3. I did not represent to the Dickersons that Trinity-Western Title Company would secure a RWC warranty policy for them. We withheld the sum of money to pay for the warranty that Mr. Panno was to furnish under his contract with the Dickersons.
4. A true and correct copy of the contract between Mr. Panno and the Dickersons is attached as Exhibit B.
*690 5. A true and correct copy of the Acceptance of Title, Survey and Property Waiver of Inspection is attached as Exhibit C.
Ms. Cannady's affidavit specifically addresses and denies that Appellee made a knowing misrepresentation to Appellants, and they did not controvert her affidavit. Nevertheless, Ms. Cannady is an "interested" witness because she is employed by Appellee. When uncontroverted summary judgment evidence comes from an interested witness, it does nothing more than raise a fact issue unless it is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. See TEX.R. CIV. P. 166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997). Ms. Cannady's affidavit is clear, positive and direct, and appears credible and free from contradictions and inconsistencies. After carefully reading Appellants' unsworn first amended original petition, we conclude that Appellants could have readily controverted the affidavit had they chosen to do so.
Paragraph 75 of the petition shows that Appellants' claim of misrepresentation is based entirely on an entry at line 1305 of the settlement statement prepared by Appellee. The settlement statement allegedly was among the documents Appellants reviewed at the closing. According to the petition, line 1305 showed that the builder paid $600 for a 10-year warranty. The unsworn petition alleges that Appellants "felt assured in relying upon that representation." However, the "representation" of line 1305 is consistent with Ms. Cannady's affidavit, which states that Appellee withheld $600 warranty cost from the builder's share of the sales price. Nowhere have Appellants alleged that Appellee did not withhold the money from the builder. The petition alleges that Appellants did not receive the warranty, and the allegations effectively seek to transfer, from the builder to Appellee, the contractual responsibility to furnish a home warranty. Nevertheless, pleadings, even if sworn to, do not constitute summary judgment proof. See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995). The record does not contain a copy of the settlement statement, and Appellants did not controvert Ms. Cannady's affidavit by attaching a copy of the settlement statement to their response to Appellee's motion for summary judgment. Moreover, Appellee was not a party to the New Home Earnest Money Contract that is exhibit B to Ms. Cannady's affidavit supporting Appellee's motion for summary judgment. The only parties to the contract are Appellants, the builder, and the real estate agents. On the subject of the warranty, paragraph 11 of the contract, entitled "Special Provisions," states:
"Builder to provied (sic) 10 year RWC warranty." (Emphasis added)
The contract identifies Appellee as the proposed issuer of a title insurance policy and as the "Escrow Agent," nothing else. The contract's paragraph 17 states plainly that the escrow agent is not a party to the contract and has no liability for the performance or non-performance of any party to the contract.
Appellants' only summary judgment proof, filed with their response to the motion for summary judgment, is the affidavit of each appellant. The two affidavits are substantially alike, except that one contains the name of Sid W. Dickerson as affiant and the other contains the name of Dottie M. Dickerson as affiant. The affidavits concede that the obligation to furnish the warranty belonged to the builder and that the builder failed to provide the warranty. Both affidavits recite that the affiant (Appellants) "understood and expected" that he or she could rely on the closing documents prepared by Appellee. The only one of those documents that is material to Appellants' claim of misrepresentation is the settlement statement, which is missing from Appellants' summary judgment proof. Because the settlement statement is not in the record on appeal and was not attached to the affidavit of either appellant, that document gives Appellants no support in this appeal relative to their misrepresentation claim against Appellee. Moreover, each affidavit concedes (paragraph 9 in his, paragraph 8 in hers) that "they" (title company) were "led to believe that the Warranty was in place at closing." That statement by Appellants is an admission that *691 Appellee merely passed along the information Appellee had received. That is not the same as an assertion that Appellee misrepresented facts it knew were false. The affidavits also concede (paragraph 10, each affidavit) that after the closing, Appellee notified Appellants that "the Warranty was never actually put in place." And to learn why, Appellants asked the builder, whose obligation it was to furnish the warranty. He told them he was unable to pay the cost of the warranty.
The settlement statement is not before us for this appeal, and the record does not include any summary judgment proof that there was a knowing misrepresentation by Appellee concerning the home's warranty. Appellants' affidavits relate what Appellants "understood" and "expected" in the transaction, but their summary judgment proof does not create genuine issues of material fact as to whether Appellee made knowing misrepresentations to them. Accordingly, Appellee is entitled to summary judgment that Appellants take nothing on their cause of action against Appellee for misrepresentation.
THE NEGLIGENCE CLAIM
The second cause of action asserted against Appellee in Appellants' first amended original petition claims that Appellee had a duty to Appellants to determine that all of the consideration for the transaction had passed. It is undisputed that the home warranty was part of the consideration for which Appellants bargained in the earnest money contract. Their petition asserts that Appellee negligently breached its duty, proximately causing them damages, by not determining at closing that all consideration required by the contract had passed.
The state's insurance code defines what is meant by "closing" the sale of real property where its owners will have their title to the property insured against loss or damage suffered by reason of liens, encumbrances upon, or defects in the title:
"Closing the Transaction" means the investigation made on behalf of a title insurance company, title insurance agent, or direct operation before the actual issuance of the title policy to determine proper execution, acknowledgment, and delivery of all conveyances, mortgage papers, and other title instruments which may be necessary to the consummation of the transaction and includes the determination that all delinquent taxes are paid, all current taxes, based on the latest available information, have been properly prorated between the purchaser and seller in the case of an owner policy, the consideration has been passed, all proceeds have been properly disbursed, a final search of the title has been made, and all necessary papers have been filed for record.
TEX. INS.CODE ANN. § 9.02(n) (Vernon Supp. 1999). (Emphasis added). Appellee's motion for summary judgment, and its summary judgment proof, do not address the question of whether it did or did not owe Appellants a duty to determine at closing whether the builder had obtained the home warranty; or whether, if that duty existed, Appellee did or did not negligently breach it. Accordingly, Appellee is not entitled to summary judgment that Appellants take nothing on their claim for negligence.
THE DECEPTIVE TRADE PRACTICES CLAIM
Appellants' first amended original petition also asserts a cause of action against Appellee for deceptive trade practices. See TEX. BUS. & COM.CODE ANN. § 17.50(a)(2) (Vernon 1997)(herein DTPA). Appellee's motion for summary judgment challenges the DTPA portion of Appellants' complaint on grounds that (1) Appellee never made a representation to Appellants about the home warranty, and (2) Appellee's inability to obtain the home warranty was not a producing cause of damages to Appellants. However, those two challenges do not address the theory of Appellants' DTPA claim. Under section 17.50(a)(2), a consumer may maintain an action where a defendant's breach of an express or implied warranty is a producing cause of damages. See id. The DTPA theory pled by Appellants is that they were entitled to rely on an implied warranty by Appellee; that in its role as escrow agent, it would determine at closing that all consideration for the transaction, such as the home's warranty, *692 has passed in accord with the earnest money contract. Appellants' first amended original petition alleges that Appellee breached that implied warranty and that the breach was both a proximate and a producing cause of Appellant's damages.[1]
Because Appellee's motion for summary judgment and summary judgment proof do not address those issues, Appellee is not entitled to summary judgment that Appellants take nothing on their DTPA claim.
NO RELEASE
Appellee contends that at the closing, Appellants accepted the home and executed a written release in favor of Appellee. We do not agree. Appellee included that document as part of its summary judgment proof. The document is entitled "Acceptance of Title, Survey and Property, Waiver of Inspection." However, the release provisions in the document do not address or relate to the 10-year warranty that the builder contracted to provide for the home. The document, which Appellants signed, simply confirms that Appellee has not "made any warranties or representations as to the condition of the above referenced property." (Emphasis added). The document merely releases Appellee from liability connected with the home's condition. The release does not entitle Appellee to summary judgment that Appellants have released the claims they assert in this suit and, therefore, take nothing against Appellee on those claims.
We have reviewed the record and summary judgment evidence under the standards of review already mentioned. We sustain Appellants' first issue to this extent only: the trial court should not have granted summary judgment that Appellants take nothing on their causes of action against Appellee for negligence and for deceptive trade practices. We overrule Appellants' first issue to this extent only: the trial court was correct in granting Appellee a summary judgment that Appellants take nothing on their cause of action against Appellee for its alleged misrepresentation.
APPELLEE'S ATTORNEY FEES
In connection with their second issue, Appellants contend that because Appellee brought no claim against them under a written contract, Appellees had no right to recover attorney fees from Appellants under the civil practice and remedies code, and therefore the trial court should not have awarded Appellee attorney fees. See TEX. CIV. PRAC. & REM.CODE ANN. § 38.001(8) (Vernon 1997). Appellants also maintain that Appellee presented no evidence of Appellants' bad faith or harassment that could entitle Appellee to attorney fees as a defendant in a DTPA suit. See TEX. BUS. & COM.CODE ANN. § 17.50(c) (Vernon 1997).
Appellee replies that its motion for summary judgment asserted its rights to attorney fees under both section 38.001 and section 17.50(c). Appellee insists that, in addition to those statutory provisions, Appellee's plea for attorney fees also was based on the provisions of the earnest money contract. We agree, and we reject Appellants' theory that because their suit asserts tort claims, it is unrelated to the earnest money contract. Appellants' suit is "related" to the contract. That contract, paragraph 16, entitles Appellee to reasonable attorney fees if it is "a prevailing party in any legal proceeding brought under or with relation to" the contract. Here, the summary judgment awarded Appellee its attorney fees without stating the grounds for the award. A trial court is not required to state the grounds on which it grants summary judgment. See Hall v. Stephenson, 919 S.W.2d 454, 464 (Tex.App. Fort Worth 1996, writ denied). Nor is a trial court required to make findings of fact and conclusions of law in a summary judgment proceeding. See State v. Easley, 404 S.W.2d 296, 297 (Tex.1966).
We overrule Appellants' second issue because we find that contract paragraph 16's provisions do allow the trial court to award Appellee attorney fees in connection with the defense of this suit from its inception *693 through the summary judgment proceeding, provided Appellee is "a prevailing party."
Appellee's single cross-point asserts that we should affirm the trial court's award of attorney fees if we find any of Appellee's theories for those fees meritorious. We overrule Appellee's cross-point, because the summary judgment grants Appellee attorney fees as a "prevailing party" on all of Appellants' claims. Although Appellee has prevailed on the misrepresentation claim, there is no prevailing party on the negligence and DTPA claims because those are yet to be finally resolved.
CONCLUSION
Because we have found that Appellee is entitled to only a partial summary judgment that Appellants take nothing against Appellee on their cause of action for Appellee's alleged misrepresentation, we affirm the trial court's summary judgment only to that extent. We reverse the remainder of the trial court's judgment and remand for trial Appellants' causes of action that seek damages for Appellee's alleged negligence and alleged deceptive trade practices. We also remand the issue of Appellee's attorney fees for the trial court's reconsideration in a manner consistent with this opinion.
NOTES
[1] The correct standard in a DTPA suit is producing cause, not proximate cause. See TEX. BUS. & COM.CODE ANN. § 17.50(a)(2) (Vernon 1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455845/ | 876 S.W.2d 370 (1993)
Virginia FERNANDEZ, et al., Appellants,
v.
CITY OF EL PASO, Appellee.
No. 08-93-00177-CV.
Court of Appeals of Texas, El Paso.
December 29, 1993.
Rehearing Overruled May 4, 1994.
*371 Carlos Eduardo Cardenas, Law Office of Joseph (Sib) Abraham, Jr., El Paso, for appellants.
David C. Caylor, City Atty., El Paso, Eduardo Miranda, Ray & McChristian, El Paso, for appellee.
Before OSBORN, C.J., and BARAJAS, J., and STEPHEN F. PRESLAR, C.J., (Retired).
OPINION
BARAJAS, Justice.
This is an appeal from the trial court's dismissal of a wrongful death and survival case brought against the city of El Paso, Appellee, under the Texas Tort Claims Act. In twenty-one points of error, Appellants complain that the trial court improperly sustained Appellee's special exceptions and dismissed Appellants' suit. We affirm the judgment of dismissal of the trial court.
I. SUMMARY OF THE EVIDENCE
On April 4, 1989, Ysidro R. Fernandez died in a fire at his home in El Paso. Appellants, the family of the deceased, brought suit against Appellee, alleging that the emergency response personnel of Appellee delayed in responding to the fire, the emergency response personnel negligently used their motor vehicles and their 9-1-1 communications system in responding to the fire, and that Appellee negligently implemented its emergency policies and failed to properly train and supervise its emergency personnel. These acts of negligence, Appellants contend, proximately caused the death of Mr. Fernandez.
Appellee answered in the suit and filed thirty special exceptions to the petition of Appellants, asserting that the petition fails to state a cause of action in that the claims of Appellants are barred as a matter of law by the Texas Tort Claims Act. Tex.Civ.Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 1986 and Supp.1993). After a hearing, the trial court sustained Appellee's special exceptions and granted Appellants time to amend their pleadings. Appellants elected to stand on their pleadings, and the trial court dismissed Appellants' cause.
II. DISCUSSION
A trial court has broad discretion in ruling on special exceptions. On review, the trial court's ruling will be reversed only upon a showing of abuse of discretion. Fuentes v. McFadden, 825 S.W.2d 772, 778 (Tex.App. El Paso 1992, no writ); Davis v. Quality Pest Control, 641 S.W.2d 324, 328 (Tex.App. Houston [14th Dist.] 1982, writ ref'd n.r.e.). *372 The test to be applied for determining whether a trial court has abused its discretion is whether the trial court acted without reference to any guiding rules and principles, or in other words, acted in an arbitrary and unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); Fuentes, 825 S.W.2d at 778.
When reviewing a trial court's dismissal of a cause of action on special exceptions, the reviewing court accepts as true all of the factual allegations of a plaintiff's pleadings. Aranda v. Ins. Co. of North America, 748 S.W.2d 210, 213 (Tex.1988); Armendariz v. Bill Sears Supermarket No. 1, 562 S.W.2d 529, 530 (Tex.App.El Paso 1978, writ ref'd n.r.e.). Of course, this does not apply to the plaintiff's assertions as to the law. Legal conclusions of the trial court are subject to de novo review in the court of appeals. As the final arbiter of the law, the appellate court has the power and the duty to independently evaluate the legal determinations of the trial court. Sears, Roebuck and Co. v. Nichols, 819 S.W.2d 900, 903 (Tex.App. Houston [14th Dist.] 1991, writ denied); MJR Corp. v. B & B Vending Co., 760 S.W.2d 4, 10 (Tex.App.Dallas 1988, writ denied).
A. Form of the Special Exceptions
In Points of Error Nos. One through Five, Appellants assert that the trial court abused its discretion in sustaining all of Appellee's special exceptions, except exceptions 3, 7, 11, 12, 28, and 29, in that the challenged special exceptions fail to point out specific defects in Appellants' pleadings. Rather, Appellants assert the special exceptions are of the nature of general demurrers prohibited by Rule 90 of the Texas Rules of Civil Procedure. See TEX.R.CIV.P. 90 and 91.
Rule 91 provides that a special exception shall "point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to." Tex.R.Civ.P. 91. A proper special exception may be used to question the sufficiency in law of the plaintiff's petition. Lara v. Lile, 828 S.W.2d 536, 541 (Tex.App.Corpus Christi 1992, no writ); Centennial Ins. v. Commercial Union Ins., 803 S.W.2d 479, 483 (Tex.App.Houston [14th Dist.] 1991, no writ). Every special exception challenging a claim must be based on one or more of three propositions:
(1) that no legal rule justifies a recovery on a claim of the type alleged;
(2) that, though there is a legal rule which might be applicable, the petition omits one or more allegations essential to bring plaintiff's claim within its scope; or
(3) that, though there is a legal rule which might be applicable, the petition shows on its face facts which negative its application.
2 McDonald, Texas Civil Practice § 9:25 (1992). The form of such an exception will withstand judicial scrutiny if it is specific enough to notify the opposing party of the pleading defect. Fuentes, 825 S.W.2d at 778. An exception that fails to satisfy the particularity requirements of Rule 91 is the equivalent of a general demurrer. Id.
After carefully reviewing the record as a whole, we are of the opinion that these questioned special exceptions of Appellee were pleaded in accordance with Rule 91. These special exceptions assert that:
(1) Appellants failed to plead exceptions to the governmental immunity established in Sections 101.055-.056 of the Texas Tort Claims Act. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.055(2) and (3) and 101.056(1) and (2);
(2) Appellants failed to plead facts showing that the provisions of Section 101.062 of the Texas Tort Claims Act apply, creating an exception to the governmental immunity established in Sections 101.055-.056. See TEX. CIV.PRAC. & REM.CODE ANN. §§ 101.055(2) and (3), 101.056(1) & (2), and 101.062(a) and (b);
(3) Appellants failed to plead facts showing a "special relationship" between Appellee and the deceased, thus establishing a legal duty owing from Appellee to the deceased under the "Public Duty" doctrine. Absent this special duty, no liability may be imposed on a municipality for the negligent failure to provide protection or services. Vaquera v. *373 Salas, 810 S.W.2d 456, 461 (Tex.App.San Antonio 1991, writ denied).
These special exceptions, when read together, clearly articulate Appellee's challenges to the petition of Appellants, putting Appellants on fair notice that the petition does not adequately show that the actions of Appellee fall within a recognized exception to the governmental immunity established in the Texas Tort Claims Act. Each of these special exceptions also falls squarely within one or more of the three categories of proper special exceptions listed in Section 9:25 of McDonald's Texas Civil Practice. Thus, the trial court did not abuse its discretion in sustaining these special exceptions. Accordingly, Appellants' Points of Error Nos. One, Two, Three, Four, and Five should be overruled.
In Point of Error No. Six, Appellants assert that the trial court abused its discretion in sustaining special exceptions 5, 8, 15, 19, 20, 21, and 23 in that these exceptions allege or allude to and rely on facts outside of Appellants' pleading. This reliance on outside facts, Appellants contend, converts these special exceptions into speaking demurrers prohibited in Texas practice. Moseley v. Hernandez, 797 S.W.2d 240, 242 (Tex. App.Corpus Christi 1990, no writ); Brown v. Hawes, 764 S.W.2d 855, 856 (Tex.App. Austin 1989, no writ); O'Neal v. Sherck Equipment Co., Inc., 751 S.W.2d 559, 562 (Tex.App.Texarkana 1988, no writ). A proper special exception must confine itself to addressing solely the matters shown on the face of the opposing pleading and must not inject factual allegations not appearing in the pleading against which the exception was raised. Brown, 764 S.W.2d at 856.
Appellants specifically allege that Appellee's assertions in special exceptions 5, 8, 15, 20, and 23 that no "special relationship" existed between Appellee and the decedent are extrinsic facts injected into the pleading controversy. By asserting the lack of a "special relationship," however, Appellee was merely attempting to establish for the trial court that Appellee owed no legal duty to the deceased. "The existence of a legal duty under a given set of facts and circumstances is a question of law for the court to decide." Abalos v. Oil Dev. Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976); Vaquera, 810 S.W.2d at 460. Thus, the allegation by Appellee in these special exceptions that no "special relationship" existed was not an extrinsic factual allegation, but rather a legal conclusion based upon an interpretation of the "Public Duty" doctrine.
Appellants next allege that Appellee's special exception 19 attempts to inject the factual proposition that Appellee did not provide emergency medical services to the deceased, rendering Section 773.021 of the Health and Safety Code inapplicable. See TEX. HEALTH & SAFETY CODE ANN. § 773.021 (Vernon 1992). A careful reading of special exception 19, however, reveals that Appellee is asserting that the allegations of Appellants do not establish that the acts of Appellee fall within an exception to its governmental immunity. As such, special exception 19 is not formally deficient as a speaking demurrer.
Finally, Appellants allege that Appellee improperly asserted in special exception 21 the factual proposition that the city of El Paso is not a "service provider" under the provisions of the Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 771.001. Like the previous point, however, this assertion by Appellee is not a factual assertion; it is an assertion that as a matter of law, Appellee is not a "service provider" under the statute. Thus, as a matter of law, Appellee did not violate the provisions in the Health and Safety Code pertaining to service providers. This legal determination was properly put before the trial court by Appellee's special exception.
We hold that the special exceptions challenged in Point of Error No. Six do not allege, allude to, or rely on facts not found in Appellants' petition. Accordingly, these exceptions are not speaking demurrers and the trial court did not abuse its discretion in sustaining them. Appellants' Point of Error No. Six should be overruled.
B. Substance of the Special Exceptions
In Points of Error Nos. Seven through Fifteen, Appellants assert that the trial court abused its discretion in sustaining Appellee's *374 special exceptions seeking preliminary relief requiring determination of matters in bar; namely, no duty owed by Appellee to the deceased, lack of proximate cause, capacity of Appellee, and the affirmative defense of sovereign immunity. Appellants rely on Interfirst Bank San Antonio N.A. v. Murry, 740 S.W.2d 550 (Tex.App.San Antonio 1987, no writ) for the proposition that special exceptions are an inappropriate vehicle for obtaining preliminary relief based on a matter in bar. Murry, 740 S.W.2d at 551.
Appellants' reliance on Murry is misplaced, however. In Murry, the San Antonio Court of Appeals reversed the trial court's sustaining special exceptions, holding that the challenged special exception was actually an erroneously labelled affirmative defense or a plea in bar based on the statute of limitations. Id. at 550-51. As the San Antonio Court stated in Murry, "Special exceptions... go to defects in the way a party pleaded a cause of action.... A defense based on a statute of limitation must be `set forth affirmatively.'" Id. at 551.
As discussed above, the challenged special exceptions in the instant case, when read as a whole, are not merely disguised attempts at obtaining preliminary relief on matters in bar. The special exceptions are sufficient to put Appellants on notice of defects in the way their cause of action was pleaded. The instant case is further distinguishable from the Murry case in that the trial court in the instant case granted Appellants time to amend their pleadings to cure these defects by including different or additional circumstances that would create a statutory duty owed by Appellee to the deceased or establish an exception to the governmental immunity of the Texas Tort Claims Act. No such additional time was granted to the appellant in the Murry case. Murry, 740 S.W.2d at 550-51.
We thus disagree with Appellants that the special exceptions challenged in Points of Error Nos. Seven through Fifteen improperly raised pleas in bar to the pleadings of Appellants. It is this Court's opinion that these special exceptions, when read as a whole, put Appellants on fair notice of pleading defects, and that the trial court did not abuse its discretion in sustaining the special exceptions. See Fuentes, 825 S.W.2d at 778. Accordingly, Appellants' Points of Error Nos. Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, and Fifteen are overruled.
Appellants next assert in Point of Error No. Sixteen that the trial court abused its discretion in sustaining Appellee's special exception 28, in that this exception raises the matter of the statutory damage cap in partial bar of Appellants' right to recover. We disagree. Appellee's special exception 28 clearly points out a defect on the face of Appellants' petition, i.e., a request for an amount in excess of the statutory limits imposed by the Texas Tort Claims Act, the very act Appellants purport to rely upon for their cause of action. Tex.Civ.Prac. & Rem.Code Ann. § 101.023(c); see City of Austin v. Cooksey, 570 S.W.2d 386, 387-88 (Tex.1978); Harris County v. White, 823 S.W.2d 385, 387 (Tex. App.Texarkana 1992, no writ) (holding that the per person liability limit of the Texas Tort Claims Act refers to the person or persons who sustained the bodily injury, and any derivative claims from such injury are included within the limit). Thus, Appellee's special exception 28 comports with the requirements of the special exception rule, and the trial court did not abuse its discretion in sustaining the special exception. Accordingly, Appellants' Point of Error No. Sixteen is overruled.
Appellants' Point of Error No. Seventeen complains that the trial court abused its discretion in sustaining Appellee's special exception 14. Special exception 14 points out that Appellants rely in their petition on Section 772.302 of the Texas Health and Safety Code to impose a duty on Appellee to quickly respond to calls for emergency help, but that Section 772.302 was not in effect at the time the events giving rise to this suit occurred. While TEX.REV.CIV.STAT. ANN. art. 1432e, § 2 (1985) (repealed 1989), the predecessor to Section 772.302, was in effect at the time of the fire, Appellants' petition incorrectly cited to the new codified version of the statute. Special exception 14 clearly points out this defect, and the trial court did not abuse its discretion in sustaining it. Appellants were *375 given the opportunity to amend their pleadings, and this defect could have easily been corrected. Accordingly, Appellants' Point of Error No. Seventeen is overruled.
In Points of Error Nos. Eighteen through Twenty, Appellants allege that the trial court abused its discretion in sustaining each of Appellee's special exceptions, except exceptions 5, 8, 15, 20, 23, 24, and 28, in that the petition of Appellants sufficiently alleges the violation of applicable statutes and ordinances, a cause of action under the Texas Tort Claims Act, and the negligent implementation of police and fire protection policy. Appellants correctly assert that in testing the sufficiency of a pleading challenged for failure to state a cause of action, all facts alleged in the challenged pleading are taken as true. Aranda, 748 S.W.2d at 213; Armendariz, 562 S.W.2d at 530. [Emphasis added]. This rule, however, does not mean, as Appellants contend, that all allegations of statutory violations in the pleading must also be taken as true. The question of whether a collection of facts and circumstances amounts to a statutory violation is one of law, not fact; therefore, it is the duty of the trial court to determine whether the facts as alleged by Appellants in their petition, taken as true, allow the conclusion that statutory violations have occurred.
As discussed above, Appellee's special exceptions, when read as a whole, pointed out to the trial court that the petition of Appellants did not allege a cause of action under the Texas Tort Claims Act, in that Appellants did not sufficiently plead exceptions to the governmental immunity established in the Act. Absent an abuse of discretion by the trial court in sustaining the special exceptions on these grounds, the trial court's ruling should not be disturbed. Fuentes, 825 S.W.2d at 778; Davis, 641 S.W.2d at 328. The body of case law interpreting the area of governmental immunity provides the standard, the guiding rules and principles of the abuse of discretion analysis, by which the challenged pleading will be measured. Davis, 641 S.W.2d at 328.
In the instant case, the trial court reached the legal conclusion that, accepting as true all of Appellants' factual allegations, the petition of Appellants did not sufficiently allege a cause of action against Appellee under the Texas Tort Claims Act. It is this legal conclusion that this Court must now review. Sears, Roebuck and Co., 819 S.W.2d at 903; MJR Corp., 760 S.W.2d at 10.
Appellee correctly points out in its brief that in analyzing a cause of action brought under the Texas Tort Claims Act against a municipality, an initial determination must be made whether the questioned act or omission involved a governmental or proprietary function. McKinney v. City of Gainesville, 814 S.W.2d 862 (Tex.App.Fort Worth 1991, no writ). Section 101.0215(a)(1) and (18) of the TEX.CIV.PRAC. & REM.CODE ANN. defines police and fire protection and control and the operation of emergency ambulance service as governmental functions, thus exposing Appellee to the general waiver of its governmental immunity for acts of negligence by its employees in performing these functions. See TEX.CIV.PRAC. & REM. CODE ANN. §§ 101.021-.0215. This statutory determination that police and fire protection and control and operation of emergency ambulance service are governmental functions does not end the inquiry, however. Further analysis under the Act is required to determine Appellee's potential liability. McKinney, 814 S.W.2d at 865.
Such inquiry reveals certain exceptions to the waiver of governmental immunity under Sections 101.021-.0215.[1] These exceptions *376 take the actions of responding to an emergency call or reacting to an emergency situation as well as the failure to provide or the method of providing police and fire protection out of the Act, thus, in effect, reinstating the municipality's governmental immunity for these functions. See TEX.CIV. PRAC. & REM.CODE ANN. §§ 101.055(2) and (3) and 101.062(b). The analysis is further complicated by the exceptions contained within these exceptions. With regard to responding to an emergency call, the Act does not waive the governmental immunity for actions that violate applicable statutes and ordinances or, in the absence of any such laws, actions taken with conscious indifference or reckless disregard for the safety of others. See TEX. CIV.PRAC. & REM.CODE ANN. §§ 101.055(2) and 101.062(b). Thus, a cause of action under the Texas Tort Claims Act based on a municipality's response to an emergency call must sufficiently allege violations of applicable statutes or ordinances relating to such emergency action.
It is the opinion of this Court, after our independent review of the legal conclusions of the trial court, that the petition of Appellants does not sufficiently allege a cause of action under the Texas Tort Claims Act. The provisions of the Texas Health and Safety Code, city of El Paso Municipal Code, and the Key Rate Schedule adopted by the Texas Department of Insurance,[2] relied upon by Appellants to establish statutory violations by Appellee that would place the actions by Appellee within the exceptions to the exceptions to the waiver of governmental immunity, do not impose an affirmative duty on Appellee to respond to an emergency situation within a certain period of time. In the absence of any such statutory violations, the actions of Appellee fall within the category of "the method of providing police or fire protection," and Appellee is immune to liability for these actions. See TEX.CIV.PRAC. & REM. CODE ANN. § 101.055(3); State v. Terrell, 588 S.W.2d 784 (Tex.1979); Ross v. City of Houston, 807 S.W.2d 336 (Tex.App.Houston [1st Dist.] 1990, writ denied); Poncar v. City of Mission, 797 S.W.2d 236, 239-40 (Tex.App. Corpus Christi 1990, no writ).
Appellants contend that their petition sufficiently states a cause of action for the negligent operation or use of a motor-driven vehicle pursuant to Section 101.021(1) of the TEX. CIV.PRAC. & REM.CODE ANN. We disagree. The use of the motor-driven vehicle complained of by Appellants falls within the category of the method of providing police or fire protection and control, rendering Appellee immune. See Tex.Civ.Prac. & Rem.Code Ann. § 101.055(3); Terrell, 588 S.W.2d at 788.
Finally, Appellants contend that a condition or use of tangible personal property of Appellee caused decedent's death, such actions and omissions falling under the waiver provisions of TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(2). Appellants' complaint focuses here on the allegedly inadequate condition of Appellee's fire-fighting apparatus and protective clothing. Again, it is the opinion of this Court that these complaints fall within the category of the method employed by Appellee for providing police or fire protection and control. As such, Appellee is immune. See *377 TEX.CIV.PRAC. & REM.CODE ANN. § 101.055(3); Terrell, 588 S.W.2d at 788.
Given the above, we hold that the petition of Appellants does not sufficiently allege facts that would place them within the waiver of immunity provisions of the Texas Tort Claims Act. As a result, the trial court did not abuse its discretion in sustaining Appellee's special exceptions. Accordingly, Appellants' Points of Error Nos. Eighteen, Nineteen, and Twenty are overruled.
In their final point of error, Appellants assert that the trial court abused its discretion in dismissing Appellants' suit, in that none of Appellee's special exceptions should have been sustained and Appellants' petition sufficiently states a cause of action upon which Appellants should be allowed to go to trial. Given our holding that the trial court did not abuse its discretion in sustaining Appellee's special exceptions, we hold that the trial court also did not abuse its discretion in dismissing Appellants' suit. Accordingly, Appellants' Point of Error No. Twenty-one is overruled.
Having overruled each of Appellants' twenty-one points of error, we affirm the judgment of the trial court.
NOTES
[1] TEX.CIV.PRAC. & REM.CODE ANN. § 101.055 reads as follows:
This chapter does not apply to a claim arising:
(1) in connection with the assessment or collection of taxes by a governmental unit;
(2) from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is taken with conscious indifference or reckless disregard for the safety of others; or
(3) from the failure to provide or the method of providing police or fire protection.
TEX.CIV.PRAC. & REM.CODE ANN. § 101.056 reads:
This chapter does not apply to a claim based on:
(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or
(2) a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.
TEX.CIV.PRAC. & REM.CODE ANN. § 101.062 reads:
(a) In this section, "9-1-1 service" and "public agency" have the meanings assigned those terms by Section 771.001, Health and Safety Code.
(b) This chapter applies to a claim against a public agency that arises from an action of an employee of the public agency or a volunteer under direction of the public agency and that involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action.
[2] The statutes and ordinances relied upon by Appellants to establish waiver of Appellee's governmental immunity are:
(1) TEX. HEALTH & SAFETY CODE ANN. §§ 771.053, 772.302, 773.009, and 773.021 (Vernon 1992).
(2) City of El Paso Municipal Code, § 2.48.030.
(3) Key Rate Schedule for Grading Cities and Towns of Texas with Reference to their Fire Defenses and Physical Conditions, 8 Tex. Reg. 759. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2489108/ | 66 F. Supp. 2d 818 (1999)
Steven G. LADY, Plaintiff,
v.
OUTBOARD MARINE CORPORATION, d/b/a OMC, Inc., d/b/a OMCC, d/b/a Chris Craft and Does I-X, Defendants.
No. 1:98CV168RG.
United States District Court, S.D. Mississippi, Southern Division.
May 7, 1999.
*819 Carter O. Bise, Floyd J. Logan, Logan and Bise, Gulfport, for Steven G. Lady, plaintiffs.
James H. Heidelberg, Colingo, Williams, Heidelberg, Steinberger & Mcelhaney, Pascagoula, for Outboard Marine Corp., d/b/a OMC, Inc., d/b/a OMCCC, d/b/a Chris Craft, Does I-X, defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
GUIROLA, United States Magistrate Judge.
BEFORE THIS COURT is the Motion of the Defendants, Outboard Marine Corporation and Recreational Boat Group Limited Partnership (hereinafter referred to as either "Defendants" or "OMC"), for Summary Judgment [13-1]. In their Motion, Defendants contend that Plaintiff's claims are preempted by provisions of the Federal Boat Safety Act of 1971 ("FBSA"). Plaintiff argues that his common law claims are preserved by the FBSA's savings clause. After consideration of the Motion, briefs and arguments of counsel and the relevant legal authority, it is the opinion of the Court that Plaintiff's common law product liability claims based upon OMC's failure to provide a propeller guard on its product is preempted by the FBSA. In addition, the Court is of the opinion that Plaintiff's claim is not permitted by the FBSA's "savings clause".
DISCUSSION
On May 7, 1995, the Plaintiff, Steve Lady, was operating a personal water craft commonly called a "jet ski". Richard Rychetsky, one of Plaintiff's friends, was following in a boat. The two vessels suddenly collided. As a result of the impact, Plaintiff was thrown from his jet ski and under Rychetsky's boat. Plaintiff was severely injured when he came into contact with the boat's moving propeller. A products liability claim was subsequently filed against OMC, the manufacturer of Rychetsky's boat. The gravamen of Plaintiff's complaint is OMC's failure to provide a propeller guard.[1] OMC argues that Plaintiff's state common law claims, based upon the failure of Defendant to install propeller guards, are preempted by the FBSA, 46 U.S.C. § 4303. Plaintiff disagrees and further contends that the § 4311(g) savings clause permits maintenance of his product liability claim.
Congress enacted the Federal Boat Safety Act, 46 U.S.C. § 4301 et. seq., in part "to improve boating safety by requiring manufacturers to provide safer boats and boating equipment to the public through compliance with safety standards to be promulgated by the Secretary of the Department in which the Coast Guard is operating presently the Secretary of Transportation." P.L. 92-75, Federal Boat Safety Act of 1971, S.Rep. No. 92-248. *820 The FBSA preemption clause, 46 U.S.C. § 4306 provides:
Unless permitted by the Secretary under section 4305 of this title, a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment (except insofar as the State or political subdivision may, in the absence of the Secretary's disapproval, regulate the carrying or use of marine safety articles to meet uniquely hazardous conditions or circumstances within the State) that is not identical to a regulation prescribed under section 4302 of this title.
Thus, § 4306 preempts state laws or regulations that are not identical to regulations promulgated under the Act. The United States Coast Guard has been delegated the exclusive authority to establish safety regulations under the FBSA. 49 C.F.R. § 1.46(n)(1). Before promulgating a regulation, the Coast Guard is required to consult with the National Boating Safety Advisory Council ("the Advisory Council") on the need for regulation. 46 U.S.C. § 4302(c)(4). In 1988, the Coast Guard directed the Advisory Council to examine the feasibility and potential safety advantages and disadvantages of propeller guards. In response, the Advisory Council appointed a Propeller Guard Subcommittee "to consider, review and assess available data concerning the nature and incidence of recreational boating accidents in which persons in the water are struck by propellers." National Boating Safety Advisory Council, Report of the Propeller Guard Subcommittee 1 (1989). After reviewing the available scientific data and testimony, the Subcommittee concluded that propeller guards would not increase overall safety, because they increased the chances of contact between a blunt object and a person in the water. Consequently, the Advisory Council Subcommittee recommended that the Coast Guard take no regulatory action to require propeller guards. Acting upon the recommendation of the Advisory Council, and concluding that available accident data did not support the imposition of a regulation requiring propeller guards on motorboats, the Coast Guard decided not to implement regulations requiring propeller guards.
The Eleventh and Eighth Circuits have held that the FBSA preempts propeller guard product liability claims. Lewis v. Brunswick Corp. 107 F.3d 1494 (11th Cir.1997); Carstensen v. Brunswick Corp. 49 F.3d 430 (8th Cir.1995). In addressing the issue, this Court held in Parker v. Outboard Marine Corp., No. J90-001(L), slip op. at 2-3 (S.D.Miss. Feb. 25, 1991) (order granting summary judgment) (citations omitted), that "[t]he Coast Guard's decision not to require propeller guards `takes on the character of a ruling that no such regulation is appropriate', and precludes states from imposing liability based on the absence of such guards... A state common law action seeking to impose liability for the failure to have a propeller guard is preempted." In Arkansas Electric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375, 384, 103 S. Ct. 1905, 1912, 76 L. Ed. 2d 1 (1983), the court held that "a federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much preemptive force as a decision to regulate. Plaintiff correctly points out that a decision not to regulate does not always have a preemptive effect." See Freightliner Corp. v. Myrick, 514 U.S. 280, 115 S. Ct. 1483, 131 L. Ed. 2d 385 (1995)(holding that the National Traffic and Motor Vehicle Safety Act did not expressly preempt state common-law design defect claims against manufacturers of trucks not equipped with antilock braking systems); Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503, 108 S. Ct. 1350, 1355, 99 L. Ed. 2d 582 (1988). However, preemption does apply "where [the] failure of ... federal officials affirmatively to exercise their full authority takes on the *821 character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute." Ray v. Atlantic Richfield Co., 435 U.S. 151, 178, 98 S. Ct. 988, 1004, 55 L. Ed. 2d 179 (1978) (citations omitted). The court's decision in Freightliner noted that "the lack of federal regulation did not result from an affirmative decision of agency officials to refrain from regulating air brakes". Freightliner Corp. v. Myrick, 514 U.S. at 286, 115 S. Ct. at 1487. In contrast, the Coast Guard, did make an informed decision to refrain from regulating propeller guards. The Coast Guard's decision not to regulate the installation of propeller guards has the same preemptive force as a decision to regulate. Therefore, to allow a jury to assess damages for failure to provide a propeller guard would, in effect, create a state regulation that guards be installed. Such a requirement would not be identical to any prescribed under the FBSA and is therefore forbidden by FBSA's preemption clause. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992)(holding that a state regulation can be as effectively exerted through an award of damages and that the obligation to pay compensation can be, and is designed to be, a potent method of governing conduct and controlling policy).
Plaintiff also asserts that his common law claims are permitted under the FBSA's savings clause. The FBSA savings clause, 46 U.S.C. § 4311(g) provides:
Compliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law.
The purpose of this provision is "to assure that in a product liability suit mere compliance by a manufacturer with the minimum standards promulgated under the Act will not be a complete defense to liability." S.Rep.No. 248, 92d Cong., 1st Sess., reprinted in 1971 U.S.Code Cong. & Admin.News 1333, 1353. From the savings clause, it is clear that Congress intended that some products liability claims could be maintained in accord with the FBSA's regulatory scheme. However, to be viable, such claims cannot conflict with the Coast Guard's exclusive authority to regulate boating equipment. "Permitting product liability claims against manufacturers for negligent or defective design of products required by the Coast Guard, or for products provided voluntarily by manufacturers, simply requires manufacturers to comply with FBSA regulations, and to do any additional manufacturing, in a non-negligent and non-defective manner. Permitting such claims is consistent with the FBSA scheme, which is designed to ensure that boats and associated equipment are safe. By contrast, claims based on the failure to install a product that the Coast Guard has decided should not be required would conflict with the regulatory uniformity purpose of the FBSA." Lewis v. Brunswick Corp., 107 F.3d at 1505. The Coast Guard consciously determined that propeller guard regulation was imprudent. On the other hand, no provision of the FBSA prohibits the use of propeller guards. Therefore, in the absence of a federal requirement, manufacturers could choose to install them. Under those circumstances, if the manufacturer installed a defectively designed propeller guard, § 4311(g) would preclude FBSA preemption as a defense. However, § 4311(g) does not apply where the manufacturer merely chooses not to install a device or appliance which the FBSA does not require.
IT IS THEREFORE ORDERED AND ADJUDGED, that for the reasons stated above, there exists no genuine issue of material fact and Defendants, Outboard Marine Corporation and Recreational Boat Group Limited Partnership, are entitled to judgment as a matter of law. Defendants' Motion for Summary Judgment, filed September 8, 1998, pursuant to FED. R. CIV. P. 56, should be, and is hereby GRANTED.
NOTES
[1] In his complaint, Plaintiff also alleged that the boat had a defective throttle. In particular, Lady contended that "the boat and engine were defective because when the operator, Mr. Rychetsky, placed the throttle into neutral prior to impact, the propeller did not cease rotating." Defendants' Memorandum in Support of Motion for Summary Judgment, p. 2, citing Plaintiff's complaint, ¶¶ 13, 15 and 31. However, Plaintiff has since conceded that there is no proof of a throttle defect and that "the portion of the manufacturer's Motion for Summary Judgment as to the claim for the allegedly defective throttle should be granted." See Plaintiff's Response, ¶ 4. | 01-03-2023 | 10-30-2013 |
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